Religions, Beliefs, and Education in the European Court of Human Rights: Investigating Judicial Pedagogies [First Edition] 1032493313, 9781032493312

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“The author, an educational researcher interested in religions and values in schools, is simultaneously well-versed in legal issues. This allows him to ­approach with rigor the intersection of law and education, brilliantly treated in this book. I recommend it”. –Montserrat Gas-Aixendri, Professor of Law, International University of Catalunya, Barcelona, Spain “This book, on judicial pedagogies, is undoubtedly an important and innovative project, as Nigel Fancourt deals with a topic that is of great importance both on a national and international level”. –Prof. Martin Rothgangel, Department of Religious Education, University of Vienna, Austria “With combined expertise in religious education, law, and educational ­research, the author is uniquely positioned to offer this lucid, incisive, and innovative account of judicial pedagogies. Indispensable for understanding relationships between the law, religion and schools, I highly recommend it”. –Dr. Jo Fraser-Pearce, Associate Professor, Institute of Education, UCL, London, UK

Religions, Beliefs and Education in the European Court of Human Rights

This book represents an exposition of ‘judicial pedagogies’ as a new concept, and discusses juridical–educational issues in detail, through an analysis of the educational claims and assumptions of judges’ decisions in the European Court of Human Rights (ECtHR). It sheds light on how, within courtrooms around the world, judges are increasingly being asked to decide upon issues of religion and belief in schooling, whether about admissions policies, curriculum planning, or pupils’ and teachers’ dress and jewellery. With key human rights principles at stake, these proceedings are often fraught, with strong clashing opinions about education and schooling. Focusing on decisions made in the European Court of Human Rights (ECtHR), the author considers how the supranational court looks at these issues, and considers the ECtHR’s role within the European education space. Drawing upon research and scholarship surrounding these questions, the book surveys a series of educational issues, including curriculum and assessment, and takes a comparative approach in the discussion of case studies to demonstrate the variety and depth of judges’ thinking. Thus, rather than considering the national or supranational legal principles and questions as jurisprudential issues, typically about religion or human rights, it reviews them from an educational perspective – as ‘folk’ theories of teaching and learning. Finally, it considers the implications of a theory of judicial pedagogy for the courts’ educational competence in deciding on these matters, for education and educational policy research, the European education space, legal scholarship, and for legal and judicial education. Developing a novel and innovative approach to the pedagogies at play in a courtroom and providing fresh insights into the courts as agents of social change, it will appeal to scholars and researchers working across the disciplines of education, law, and religious studies. Nigel Fancourt is Associate Professor of Education and Values in the Department of Education, University of Oxford, UK.

Routledge Research in Religion and Education Series Editor Michael D. Waggoner University of Northern Iowa, USA

21. Teaching Religious Literacy to Combat Religious Bullying Insights from North American Secondary Schools W. Y. Alice Chan 22. Law, Education, and the Place of Religion in Public Schools International Perspectives Edited by Charles J. Russo 23. Engaging with Vocation on Campus Supporting Students’ Vocational Discernment through Curricular and Co-Curricular Approaches Edited by Karen Lovett and Stephen Wilhoit 24. Religion and Worldviews in Education The New Watershed Edited by Liam Gearon, Arniika Kuusisto, Saila Poulter, Auli Toom, and Martin Ubani 25. Inclusion and Sexuality in Catholic Higher Education Possibilities for Institutional Change Mark A. Levand 26. Equipping Educators to Teach Religious Literacy Lessons from a Teacher Education Program in the American South Emile Lester and W. Y. Alice Chan 27. Religions, Beliefs and Education in the European Court of Human Rights Investigating Judicial Pedagogies Nigel Fancourt

Religions, Beliefs and Education in the European Court of Human Rights Investigating Judicial Pedagogies Nigel Fancourt

First published 2024 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 Nigel Fancourt The right of Nigel Fancourt to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. ISBN: 978-1-032-48861-5 (hbk) ISBN: 978-1-032-49331-2 (pbk) ISBN: 978-1-003-39327-6 (ebk) DOI: 10.4324/9781003393276 Typeset in Galliard by SPi Technologies India Pvt Ltd (Straive)

For Amanda

Contents

Series editor foreword x Acknowledgements xiii List of acronyms and abbreviations xiv 1 Introduction: from Salzkotten to Strasbourg 2 The ECtHR in Europe: Europeanisation, human rights and the role of the courts

1 15

3 Judicial pedagogies: concept and methodological approach 43 4 Judicial definitions of education, convictions and indoctrination 58 5 Judicial assumptions about curriculum design

75

6 Judicial assumptions about teachers and teaching

98

7 Judicial assumptions about learners and learning

114

8 Judicial assumptions about assessment and examinations

135

9 Discussion: judicial pedagogies, coherence and Europeanisation 153 10 Conclusion: investigating judicial pedagogies internationally 169 Index 181

Series Editor Foreword

The opening years of the 21st century brought increased attention to religion as an important dimension of culture and politics. The dramatic multi-­ pronged attacks of September 11, 2001, came as a jolting reminder of the potential for violent action that can have bases in religious motivations. Over the same period, we came to see an increase in religiously motivated activity in politics. In the US, we see this in the evolution from the Moral Majority movement, which emerged as a force in the late 1970s, into the New Religious Right. On further reflection, however, we can see the involvement of religion extending much further back as a fundamental part of our social organization rather than a new or emerging phenomenon. We need only recall the religious wars of early modern Europe through to the contentious development of US church and state relations as evidence of the longstanding role religion has played as a source of competing values and beliefs. There has been a significant upturn in research and scholarship across many disciplines relative to the study of religion in recent decades. This is particularly the case in the area of the interplay of education and religion. While religious education, as formation in a particular faith tradition through study, has been with us for millennia, religion education as study about religion as an academic subject apart from theology, is more recent. Whereas theology departments proceeded from religious assumptions aiming to promulgate a faith tradition, the religious studies field emerged as a discipline that sought to bring a more objective social scientific approach to the study of religion. The origins of this approach date back to the European research centers that influenced US scholars beginning in the 18th century. The formalization of this trend, however, is a fairly recent phenomenon as illustrated by the 1949 formation of the Society for the Scientific Study of Religion with its scholarly journal and the creation of religious studies departments across the US in the wake of the US Supreme Court decision in 1963 that allowed, even encouraged, teaching about religion (rather than for) in public education institutions. That same year, the

Series Editor Foreword  xi American Academy of Religion was born out of a group of scholars that had since 1909 been meeting under various names related to biblical study. It is out of this relatively recent increase in scholarly attention to religion and education that this book series arose. Routledge Publishers have long been an important presence in the respective fields of religion and education. It seemed like a natural step to introduce a book series focused particularly on Research in Religion and Education. My appreciation extends to Max Novick for guiding this series into being in 2011 and now to Alice Salt and Sophie Ganesh for continuing Routledge’s oversight. The 27th volume in the series is Religions, Beliefs and Education in the European Court of Human Rights: Investigating Judicial Pedagogies by Nigel Fancourt. He brings an unusually rich knowledge and experience base to this topic. He is Associate Professor of Education and Values in the University of Oxford, researching religion and values in schools. Previously, he served as an English solicitor and a religious education teacher in a non-­ selective state secondary school in England. In this volume, he investigates issues emerging from the entanglement of law and education when addressing religion and belief in schools, pursuing the question: Can an analysis of the decisions of the European Court of Human Rights uncover coherent judicial pedagogies used in deciding issues relating to religion and belief in schools and what might that mean for future adjudication of such issues? His first chapter ‘Introduction’ opens with an extended discussion of a case that illustrates the complexity of the interplay of school policy and individuals’ sincerely held religious beliefs and the importance of the knowledge and assumptions judges bring to their decision-­making. In his second chapter, Fancourt shows the place of the European Court of Human Rights within the larger structure of the offices of the Council of Europe and provides pertinent historical background that brought this Court to its current function. Significant in this background and unfolding throughout the book is his analysis and discussion of “judicial pedagogies” that he argues help to shape both the “Europeanisation of education” and the “Europeanisation of religions and beliefs in education.” Understanding the interplay between judicial pedagogies and these “Europeanisations” is a major focus of this book. Chapters 3 through 7 elaborate his argument. Chapter 3 lays out five themes that demonstrate his argument regarding judicial pedagogies: definition of key terms (Chapter 4); judicial assumptions about curriculum design (Chapter 5); judicial assumptions about teachers and teaching (Chapter 6); judicial assumptions about learners and learning (Chapter 7); and the European Court of Human Rights’ views on assessment (Chapter 8). The foregoing analysis is revisited in a summary form in Chapter 9, identifying judicial pedagogies and their relative coherence according to

xii  Series Editor Foreword variability and assumptions. Fancourt argues here that these pedagogies shape the Europeanisation of religions and beliefs in education differently from the generic form of Europeanisation of education, both because it is omitted from these generic processes but also because of the manner in which the ECtHR’s decisions have an impact on national and supranational policies, and on grassroots mobilization on contested issues. In his concluding chapter, Fancourt considers potential implications of this analysis for a wider international audience using the examples of two cases, one from the United States and one from South Africa. This work takes a complicated analysis of a controversial subject and makes it accessible for the layperson, student, and scholar. And while it will be of the most immediate interest to those within the European context, it should also invite the attention of international readers who might examine the judicial pedagogies of their own countries.

Acknowledgements

From initial ideas to publication, I have been supported and encouraged by various kind and thoughtful people. My first foray into the ECtHR’s assumptions was at a conference of the European Network for Religious Education through Contextual Approaches, in Gothenburg in 2013. Further valuable feedback was from colleagues at various other conferences over the decade, notably, the Association of University Lecturers in Religious Education, British Educational Research Association, and the International Seminar for Religious Education and Values. The developing ideas led to a book chapter and an article, and finally this monograph. I have been especially appreciative of support and suggestions over this period from Hans-­Gunther Heimbrock, Bob Jackson, Alis Oancea, Christina Osbeck and Peter Schreiner. It was also my privilege to supervise Abdurrahman Hendek for his doctorate and I have learnt much from our discussions and subsequent collaborations. I am grateful to the University of Oxford for a sabbatical term in 2022 so that I could finally start to work on this project. However, none of this progress would have been possible without the love, patience and support of Amanda and Eleanor.

Acronyms and abbreviations

A2P1

Article 2 of Protocol 1 of the European Convention on Human Rights (right to education) A8 Article 8 of the European Convention on Human Rights (right to private life) A9 Article 9 of the European Convention on Human Rights (right to freedom of religion or belief) A14 Article 14 of the European Convention on Human Rights (right to freedom from discrimination) CoE Council of Europe, or, the Council EC European Commission ECHR European Convention on Human Rights, or, the Convention ECtHR European Court of Human Rights, or, the Court EU European Union Kjeldsen principles the curricular criteria of objectivity, criticality and pluralism, from Kjeldsen et al. Denmark KRL Kristendomskunnskap med religions-­og livsynsorientering [Christianity, religion and philosophy] a religious education curriculum introduced in Norway in 1997 ODIHR Office for Democratic Institutions and Human Rights, part of OSCE OECD Organisation for Economic Co-­operation and Development OSCE Organisation for Security and Co-­operation in Europe PISA Programme for International Student Assessment, ­organised by OECD Toledo Principles OSCE/ODIHR’s (2007) joint guidance on “teaching about religions and beliefs in public schools”, formalised in Toledo UDHR Universal Declaration of Human Rights UN United Nations UNCRC United Nations’ Convention on the Rights of the Child

1 Introduction From Salzkotten to Strasbourg

In courtrooms around the world, judges are increasingly being asked to decide upon issues of religion and belief in schooling, whether it be about admissions policies, curriculum planning (including religious education, sex and relationships education, and science), or pupils’ and teachers’ dress and jewellery. These proceedings are often fraught because key human rights principles are at stake, clashing with strong opinions about education and schooling. In this book, I explore these juridical–educational issues in detail, through an analysis of the educational claims and assumptions of judges’ decisions in the European Court of Human Rights (ECtHR, or the Court). The book will also consider how this Court’s decisions thereby contribute to the process of the Europeanisation of education. To begin, here is one less well-known case, Dojan et al. v. Germany,1 which raises various religious and educational issues. Salzkotten Primary School In 2005, staff at the Salzkotten Primary School, a state-funded school in North Rhine-Westphalia, were planning the delivery of sex education classes to pupils in Year 4 (8–9 years old). The sessions were planned by a small group of teachers and parents, and they followed their usual practice of sending letters to all parents with pupils in the class the opportunity to review the teaching materials and textbooks in advance. Two couples, Willi and Anna Dojan, and Theodor and Lydia Frölich, were members of the local “Christian Evangelical Baptist” church (Evangeliumschristen-Baptisten), a congregationalist church movement originating in Eastern Europe. They reviewed the materials and considered that Their children had been raised without the negative influence of the media, had been used to modest and chaste sexual behaviour at home and did thus not have the necessary maturity to receive the envisaged sex education. The parents objected in particular to the DOI: 10.4324/9781003393276-1

2 Introduction [textbook’s] content, which in their opinion was partly pornographic and contrary to Christian sexual ethics requiring that sex should be limited to matrimony. In their view, it set forth a liberal, emancipatory image of sexuality which was not consistent with their religious and other moral beliefs and would lead to premature “sexualisation” of the children. (Dojan, Paragraph 2(a), see footnote above) The parents requested that their children, David and Elly, respectively, were withdrawn from the lessons. The school refused because the course was mandatory under German law. David and Elly attended the first two lessons, but after a further request was also denied, their and others’ parents from the church with pupils in Year 4 went to the school when the lesson was timetabled to prevent their children from attending. The school reacted the following week by randomly allocating the lesson across the weekly timetable so that the parents would not know when it was happening, and the children would not miss the lesson. The two couples countered this by simply withdrawing their children from school for a whole week, during which the remaining lessons were given. As a result, all four parents were fined for not sending their children to school. The events raise several educational issues and questions around curriculum design and planning. For example, in deciding what material is appropriate for what age of pupil, i.e., whether Year 4 was appropriate for the material covered, or relatedly where and how the “necessary” maturity could develop. The parents’ argument is that this maturity is a function of children’s experiences at home, so the lessons should happen when the pupils are older. It is unclear if the parents thought it should happen later for all children in the class or only for those who lacked the necessary maturity. At one level, this is simply a request for better differentiation of teaching according to the learners’ current knowledge of the subject. There were wider implicit questions about curriculum planning and timetabling for sex education, though they were not raised at the time. In considering the educational benefit of regular lessons or modules as opposed to sporadic lessons, one might argue that sex and relationships education lessons should happen regularly over the year, rather than in one six-week module, and that pupils learn better if there is a set period for this in the timetable (as planned), rather than the random allocation that the school adopted. It could appear odd for the remaining pupils to experience one ‘sex and relationships’ lesson on, for example, the first lesson on Monday, the next just after lunch on Thursday, and the next the following Friday at the end of the school day. It would also be disruptive if this meant that other regular lessons were lost altogether or moved. There are of course questions around the underlying issues of parental freedom of belief, and whether this

Introduction  3 should entitle parents to opt out of any aspect of the curriculum, but these are bound up in these humdrum educational decisions. The story did not stop there. In 2006, the staff were concerned about how best to enhance their compulsory sex and relationship curriculum to address – in an appropriate manner – the sensitive issue of resisting and reporting sexual abuse, whether by family members or strangers. Rather than usual class teaching, they decided to hire an educational theatre group in the region that offered a workshop titled ‘My body is mine’ [Mein Körper gehört mir]. This workshop was for pupils in both Years 3 and 4, and ran in early 2007. However, three couples from the same church stopped their children from attending: the Dojan parents, though now in relation to their daughter; Eduard and Rita Wiens, in relation to their daughter; Heinrich and Irene Wiens, in relation to their three children. Eduard and Heinrich were brothers, and collectively, the two Wiens couples argued that the approach taken in the course was contrary to their religious conviction because it would: …make a child’s own feelings and will the basis of his or her sexual behaviour [and] this would encourage them to act according to their sexual desire like an adult, lose their sense of shame and engage in sexual acts with adults. The biblical doctrine of chastity, limiting sexuality to matrimony, constituted sufficient protection against sexual abuse and there was no scientific proof that the theatre workshop had a preventive effect in this respect. (Paragraph 3(a)) All these parents were fined for their children’s non-attendance. This second phase raised further issues, though they were not part of the dispute. The school had decided that this would be best addressed through a theatre workshop, rather than within or alongside the sort of materials that they used for sex and relationship education, so this is a significant pedagogical decision. The school would be reliant on the theatre group’s expertise, and the performance would mark a rupture with the usual school timetable. Noteworthy also is the decision to extend this to Year 3 pupils – who had not yet received any sex education. This decision was based on the consideration that pupils needed to be alerted to the dangers of abuse from an earlier age, for which they did not need the explicit details of the sex education. It meant that there would be a split audience in the show, the Year 4 pupils for whom this was part of or alongside their sex education, and the Year 3 pupils, for whom this was a singular experience without any other curricular grounding. However, the performance was not intended for pupils below Year 3, who might also need such support against abuse, and seems to imply that some lower age limit was considered necessary. There

4 Introduction were conflicting assumptions about pupils’ age-related expectations and maturity and their need for certain kinds of information. The events then entered a third phase. The school had its own tradition of celebrating “Little Carnival” [Lütke Fastnacht] with all its pupils. The tradition of ‘Carnival’ is widespread across central and southern Germany, Switzerland and Austria, termed ‘Fastnacht’. Like many folk practices, it contains some very traditional elements but is constantly open to local variation and reinterpretation (Bürkert 2016; Niekrenz 2014). It typically includes street processions with a range of set characters, such as jesters, figures from legends, devils and witches, and during which participants can act in socially unusual ways, for example, cross-dressing (Tokofsky 1999), partying, and eating special foods, and indeed a ‘fastnacht’ is also a type of doughnut. It is held on Shrove Tuesday, the day before the serious period of fasting in Lent commences, though different elements in different communities can be held before or indeed after Shrove Tuesday. Linked to the liturgical year, its origins are medieval, and it is often strong in traditionally Catholic regions of Germany. Salzkotten Primary School had adopted the local Westphalian tradition of Lütke Fastnacht, which was usually held one morning about a week before Shrove Tuesday. Pupils would dress up and then parade around the school playground, instead of lessons. Attendance at school was mandatory, but it was not compulsory to attend the event, and for those pupils who did not wish to take part, swimming or the use of the gym was provided instead. In 2007, the event was set for 15th February. Eduard and Rita Weins withheld two of their children from school, as also did Artur and Anna Weins, a third Weins brother and his wife, because the event was “inconsistent with their religious and moral beliefs and the religious education they provided to their children”. They considered it: …a Catholic festivity which was directed by carnal desire and accompanied by immoral and uninhibited behaviour. They claimed that they had not been aware that their children would have had the alternative opportunity to attend swimming lessons and that they had not sent their children to school in order that the children not be exposed to the carnival celebrations in the classroom or the gym. (Paragraph 3(a)) Their argument was not that their children actually engaged in immoral or uninhibited behaviour, but more that the school event itself was in some sense still Catholic so not in accordance with their beliefs, and that the wider festival (and behaviour) was given legitimacy through the school’s derivative event. They were fined for their children’s non-attendance at school.

Introduction  5 Some striking educational decisions can be unpicked. First is the educational rationale for the school’s Lütke Fastnacht, especially as this replaced the normal curriculum. It is not clearly articulated in any case reports but is impliedly linked to a sense of the school as a community, and as a part of the local community. This neither falls within the curricular decision-making that underpins the sex and relationship education, in terms of valuable knowledge and understanding for the pupils’ future lives, nor in terms of the safeguarding concerns that underpinned the theatre workshop. Schooling here serves a different function. The parent’s position introduces a different dimension: the implicit or hidden curriculum, in that the school event might signal approval of Fastnach generally. Second, the alternatives are unusual, and imply that an element of play was appropriate. Swimming lessons and gym activities may simply mean some splashing around in the water or jumping around in the gym, but presumably extra mathematics or writing would be unsuitable. The alternatives were reasonably acceptable given that a pupil’s peers would be enjoying themselves. However, these alternatives would require appropriately experienced staffing. In the final phase, the three Weins couples continued to withhold their children from school, so fines were imposed. They refused to pay, and eventually Heinrich, Irene, Eduard and Artur served prison sentences; Anna’s and Rita’s sentences were adjourned because Anna was pregnant, and Rita had just given birth. All five couples took their cases through the German courts, in which their basic claim to freedom of religion in education was rejected, so they appealed to the ECtHR, as Germany is a signatory to the European Convention on Human Rights. Alongside the main issues, they also argued that children of Muslim parents had been granted exemptions from sex education classes, or had not been penalised if they had withdrawn them. At the ECtHR, the case was heard on 13th December 2011 by Dean Spielmann, as the President (from Luxembourg), and as judges: Elisabet Fura (from Sweden), Karel Jungwiert (Czech Republic, but born when it was Czechoslovakia), Boštjan M. Zupančič (Slovenia, but born when it was part of Yugoslavia), Mark Villiger (Liechtenstein, but born in South Africa, and raised in Mozambique and Austria), Ganna Yudkivska (Ukraine, but born when it was part of the Soviet Union) and Angelika Nußberger (Germany). These judges would have had very different educational experiences themselves, based within different educational structures, and with different experiences of the place of religions in schools, of sex and relationships education, and of school festivals. Three had been educated behind the Iron Curtain (Jungwiert, Zupančič and Yudkivska), in a strongly atheistic education system; two, Villiger and Nußberger, might have a prior cultural understanding of Carnival in the German-speaking world. This diversity brings

6 Introduction both richness of perspective but could also lead to differences of opinion, not least when combined with different legal opinions. This Court rejected all their claims. On the question of sex education, it held that The…classes at issue aimed at, as stated by the [local] District Court, the neutral transmission of knowledge regarding procreation, contraception, pregnancy and childbirth in accordance with the underlying legal provisions and the ensuing guidelines and the curriculum, which were based on current scientific and educational standards. (Paragraph 2) This statement identifies the different layers of educational planning that were involved at Salzkotten Primary School: neutral transmission of knowledge; underlying legal provisions; ensuing guidelines; curriculum; current scientific standards; current educational standards. For safeguarding, it considered that “The goal of the theatre workshop ‘My body is mine’ was to raise awareness of sexual violence and abuse of children with a view to its prevention”, thereby accepting this as a valid aim. Third, regarding the carnival event, it held that As regards the carnival celebrations at issue, the Court notes that these were not accompanied by any religious activities and that in any event the children had the possibility of attending alternative events. (Paragraph 2) For the carnival, the Court did not identify any aim or purpose here, only the lack of any ‘religious activities’, which are undefined. It went on to consider the provision of alternatives: As pointed out by the German courts, the opportunity to attend such alternative activities constituted an attempt by the school management to accommodate the moral and religious convictions of the several children and their parents belonging to the Christian Evangelical Baptist community to the extent possible but also with a view to guaranteeing the proper functioning of the school system. (The Law, paragraph 2) The final explanation, regarding the ‘proper functioning of the school system’, is also not fully explored here, but points to some assumptions. As noted in this small vignette from one case, three different functions are implicit in the three points of contention.

Introduction  7 These legal questions play out across a complex religious terrain. The families are Christian but are not represented by the dominant churches of the region in their attitudes to sex and relationships education or Carnival. From a congregationalist church, they may only represent the views of that congregation, so their case cannot be seen as addressing a potentially wider debate. The families are also a religious minority but do not feel aligned with other local religious minorities. Legally, this case is unremarkable because it did not raise significant new points of law. Underneath, however, it shows how such cases are bound up in complex educational decision-making, as well as how these decisions rub up against parents’ or students’ strongly held convictions. While the various Weins couples might be considered obstinate, they were only so because they sincerely felt that the local school, to which they were obliged to send their children, was causing their children moral and spiritual harm, and they were being treated unfairly in comparison to other parents and pupils, including other religious minorities. A decision to face prison on this account is not trivial. In deciding on these issues, the courts must take into consideration not just individual’s rights, as a student or as a parent, but also set these considerations against assumptions about the function of schooling. Throughout this account, the Court’s views of and assumptions about teaching and learning appear sporadically, whether explicitly or implicitly. However, they are only explicit in relation to the potential infringement of human rights and not on their own terms. The Court does not have to decide on the proper function of the school system in general, it only must decide if a school is acting improperly in some specific manner. However, even if its decisions do not address all the educational factors, its decision is binding across Europe. Background and outline My interest in these issues and questions arises from a combination of my work as an educational researcher of religions and values in schools, with my previous careers as a lawyer, and more specifically an English solicitor, and then a teacher of religious education in a non-selective state secondary school in England, teaching several world religions. As a former lawyer, I was conscious that educational researchers in England could be surprisingly unaware or vague about the role and nature of the law, courts or lawyers. For example, Rizvi and Lingard (2010) mention neither lawyers, the courts nor the judiciary in their classic analysis of the globalisation of education policy, merely treating the law as one of many policy texts, and even then these texts are subsumed into a policy process without a mention of the courts. Likewise, Dinham (2021) in his important

8 Introduction book on religion and belief literacy explains the duty on schools in UK to support “Fundamental British Values” but without mentioning or citing the relevant legislation, the Counter-Terrorism and Security Act (UK Government 2015), merely referring to “policy” guidance (p. 65). This however is not the case elsewhere, e.g. the USA or Canada: a recent six volume series on ‘educational foundations’ concludes with a volume on ‘legal foundations’ (Blokhuis 2023), alongside volumes on philosophy, history, sociology, policy and economics. Conversely, I considered that several lawyers and legal scholars could be imprecise when commenting about education and schooling. Zucca (2012) confidently asserted: UK state schools offer a very basic service when it comes to education. It is no secret that private schools provide a better start in life and entrench class differences based on economic means. The rich will be rich and well educated; the poor will be poor and poorly educated. (p. 145) This is quite a claim and assumes that (a) UK state education is very basic, especially when education in the UK is organised by the four home nations, (b) private schools offer something beyond the advantage of social class in itself, (c) the rich always send their children to private schools, and/or (d) higher socio-economic status pupils do badly in state schools. The picture has long been more nuanced; for instance, Henderson et al. (2020) show that there is no advantage in access to elite universities if other factors are stripped away. In particular, I was struck by the decision in an ECtHR case, Lautsi v. Italy, on whether the presence of crucifixes in classrooms was an infringement of the rights of atheist pupils. In holding that it was not, one judge held: The Convention … bans any teaching in schools unwelcome to parents on religious, ethical and philosophical grounds. The keyword of this norm is obviously “teaching” and I doubt how far the mute presence of a symbol of European cultural continuity would amount to teaching in any sense of that fairly unambiguous word [emphasis added] (Lautsi; Bonello’s Opinion, paragraph 3.2) It seemed remarkable that an issue which, in this particular case had gone to the Italian First Instance court, through two appeals in Italy, then onto the ECtHR, and finally a Grand Assembly of 17 judges of the ECtHR, and which raises considerable disagreement in educational circles for researchers, policymakers and parents, could be labelled “unambiguous” – especially

Introduction  9 as he does not explicitly define it. The complexity of the issues in Salzkotten is also evidence of their ambiguity. The intersection of law, policy and religion in education has been an increasing research interest (Fancourt 2015, 2022a, 2022b, 2023), including, with a colleague, an exploration of the effects of ECtHR’s decisions in England and Türkiye (Hendek & Fancourt 2021). This book is a development from an earlier book chapter (Fancourt 2017) and article (Fancourt 2022b), which focused on judges’ views of religious symbols in classrooms; indeed, these returned to an earlier interest in judicial discretion (Fancourt 1995). This book is intended to extend and refine these more recent arguments, going beyond a focus on symbols to include other aspects of teaching and learning. I have tried to write for readers from different disciplines but, as with any work that sits across disciplines, this runs the risk of oversimplification or obscurity. I can only hope that readers find their own discipline adequately represented, other disciplines clearly represented, and any combination both adequate and clear. Overview of subsequent chapters After this Introduction, Chapter 2 reviews the academic landscape, covering various research and scholarly traditions to outline the place of the ECtHR in Europe, institutionally and in terms of the relevant human rights and the structural role of courts. First, the institutional background of the ECtHR is described, and its place within the Council of Europe. Other European institutions’ positions and educational work are explored (notably those of the EU), as well those of as other international institutions in Europe. Then, the development in educational research of the study of the Europeanisation of education is outlined, notably on the emergence of the European education space. Differences between the Europeanisation of education generally and the Europeanisation of religions and beliefs in education are examined. Next, the relevant human rights are discussed, notably Article 9 (freedom of religion or belief) and Article 2 of Protocol 1 (education), but also Articles 8 (private life) and 14 (freedom from discrimination). Last, it will review the structural opportunities and challenges for courts as agents of change or maintainers of tradition, particularly concerning religion and belief. It will consider how and why these debates often depend on the legal or constitutional setting. It concludes by proposing that greater attention is needs to be paid to the educational elements in ECtHR’s decisions. Chapter 3 introduces the research aim of considering how ECtHR’s “judicial pedagogies” shape the Europeanisation of religions and beliefs in education. First, broad reasons for needing the concept of judicial pedagogies will be considered, in relation to both the competence of the courts and the sociology of the judiciary, notably in wider explanations as to why and

10 Introduction how judges make their decisions, such as social background, education or gender. The concept’s roots are exposed in Bruner’s (1996) notion of “folk pedagogies”. Bruner’s four models of this are explained, as are Sfard’s (1998) contrasting metaphors of acquisition and participation. The use of the term ‘pedagogies’ is discussed, to include curriculum and assessment. Two research questions are then introduced: What judicial pedagogies can be found in the ECtHR’s decisions? How coherent are these judicial pedagogies? A narrative comparative case-study approach is explained and justified in focusing on purposively selected contrasting cases, on five themes: definitions; curriculum; teaching; learning; assessment. Chapter 4 is on “judicial definitions of education, convictions and indoctrination”. The chapter will consider some of the claims that ECtHR judges have made about the role and purpose of education, about convictions (in the sense of commitments or beliefs rather than offences) and about indoctrination. First, various well-established philosophies of education are considered, including the tension between education considered as being for the individual or society, and arguments about the value of different kinds of knowledge, for example, disciplinary knowledge or vocational knowledge. Arguments over the definition of indoctrination are considered since these can reflect unclarity on defining education. Then, two leading cases are reviewed. First is Campbell and Cosans v. UK2 from 1977, which considered whether corporal punishment was part of education or simply an ancillary matter. The case also involved deciding what constituted a belief or conviction, since the parents staked their claim on a belief or conviction that beating children was wrong. Second is Kjeldsen et al. v. Denmark (1976),3 concerning religious objections to sex and relationships education. It delimited the kinds of knowledge to which parents could not object on religious grounds, and thereby discussed indoctrination. The two cases show how ECtHR judges are required to make assumptions about these philosophical issues. Chapter 5 (“Judicial assumptions about curriculum design”) continues the analysis. The religious education curriculum is the most obvious issue for appeals to ECtHR under A2P1 since this is most likely to conflict with parents’ convictions. The chapter considers curriculum design, noting: the subject’s potential aims, and labels; the underpinning academic disciplines; the representation of religions or philosophical positions; the number of religions and other perspectives/worldviews; content of specific modules. Three cases are then explored. First, in Folgerø v. Norway (2007),4 the Court considered if a ‘new’ pluralistic curriculum was still confessional, requiring an opt-out clause. Judges had not only to make decisions about the aims and purposes of religious education, but also about what constitutes a religion/belief, and when and how different curricular elements about both this religion/belief and others are sequenced across different phases of education. The other two

Introduction  11 cases concerned the treatment of a religious minority (Alevis) in the Sunnidominated Turkish curriculum: Zengin v. Türkiye (2007)5 and Yalçin v. Türkiye (2014).6 The balance between acquisition and participation metaphors is considered. To conclude, the tensions between curriculum design, representation and self-identification are set out. Next, in Chapter 6, “Judicial assumptions about teachers and teaching”, the ECtHR’s views of being a teacher are considered, in considering the balance between professionalism and religiosity. It covers part of what is termed pedagogy on a narrow definition and raises a set of assumptions about learning. There are three broad issues within the research literature to consider: teaching as vocation or profession; teacher agency and curriculum; teacher talk. These issues themselves position the relationship between teacher and learner differently and imply different models or metaphors of learning. Two cases are reviewed, Dahlab v. Switzerland (2001),7 concerning a Muslim teacher’s right to wear hijab in school, under Article 9, and Fernández Martínez v. Spain (2014),8 under Article 8, concerning whether a teacher’s failure to comply with – and active objection to – his church’s doctrinal and ethical demands meant he could not be a confessional religious education teacher. These cases raise questions about the porosity between personal religiosity and public professionality, and about the relationship between the teacher and the curriculum. They also can be viewed through the lens of different models or metaphors for learning. Chapter 7 explores “judicial assumptions about learners and learning”. This considers judges’ views on the process of learning, in considering how information or knowledge is imparted to or developed in pupils, noting the challenge that learning is not mentioned in the ECHR. The chapter outlines four aspects of learning: pupils’ mental development; learning as an individual or collective process; classroom dialogue; the place of image, ritual and symbol in schools. Three cases that address the issues of what and how children and young people learn are considered, none of which concern didactic instruction. Lautsi v. Italy (2011)9 is first discussed, on whether (and if so what and how) pupils learn from the presence of a crucifix on the classroom wall. The judges’ argument for ‘passive symbols’ is reviewed, as are notions of dialogue and neutralisation. Next, Perovy v. Russia10 (2020) is explored, which concerned a classroom blessing in primary school and the pedagogical value of feelings of disagreement. In Osmanoğlu and Kocabaş v. Switzerland (2017),11 about opting out of mixed-sex swimming lessons, the Court had to consider the benefit of being in swimming lessons with the whole class; specific research on the potential socialising effects of physical education is discussed. Judicial theories of learning are found to be highly varied, with implications for the Court’s competence. The last analysis chapter (Chapter 8) reviews the ECtHR’s approaches to assessment and examinations. Four broad purposes of assessment are

12 Introduction identified, from the individual pupil to the school system: pupil assessment and pupil learning; school decision-making; qualification and selection; programme evaluation and system monitoring. First, the broad silence on assessment is noted despite the value to appellants of showing some effect on their children’s learning from inappropriate lessons; some passing references in Zengin are also considered. Then, the similar cases of Saniewski v. Poland (2001)12 and Grzelak v. Poland (2010),13 are reviewed, in both of which atheist pupils withdrew from religious education in their respective Polish high schools, but had no marks shown in the official register at the end of the school year. These cases focus on school decision-making, and qualification and selection, notably the uses of yearly average marks; some faulty assumptions by the Court, for example, on the calculation of averages, are reviewed. The chapter concludes by noting the challenges when assessment purposes are not explicitly considered. The Court’s views of assessment are considered in the light of different models of assessment, and the tension between accreditation as an individualistic function of schooling for demonstrating the acquisition of knowledge and learning as participation. Chapter 9, the discussion chapter, returns to the research questions and the overall research aim. First, it summarises the previous five analysis chapters, thereby addressing the first research question (What judicial pedagogies can be found in the ECtHR’s decisions?), and then tackles the second question (How coherent are these judicial pedagogies?) by showing the variability of approach and assumptions. Then, it considers how these decisions shape the Europeanisation of religions and beliefs in education. It argues that this process is constructed differently from the generic form of Europeanisation of education, both because it is omitted from these generic processes but also because of the manner in which the ECtHR’s decisions have an impact on national and supranational policies, and on grassroots mobilisation on contested issues. It also argues that the two different strands of Europeanisation of religions and beliefs in education, through law and softer policy, should be more clearly recognised. Chapter 10 is a more expansive exploration of the broader potential for considering judicial pedagogies in different settings around the world. The wider issues of the ECtHR’s decisions in Europe are considered, and the need to reconsider claims about wider political philosophies in the light of pedagogical assumptions. Then, it outlines other contexts for case law on education in which the courts can be seen to adopt judicial pedagogies, indicating that the phenomenon is not limited to Europe. The first context is from the US, in Jones v. Clear Creek Independent School District (1993),14 about graduation prayers. The second is post-apartheid South Africa, in MEC for Education: Kwazulu-Natal and Others v. Pillay (2007),15 concerning the banning of a Tamil heritage student’s nose-stud under the school uniform policy. Next, its more practical role in judicial education is explored,

Introduction  13 setting out some suggestions for the issues and expertise that would support judges. Some concluding remarks consider the impact of litigation on the lives of the students at the heart of these cases. Notes 1 Dojan and Others v. Germany – 319/08 et al. Decision 13 September 2011. https://hudoc.echr.coe.int/eng?i=001-106382. The case is referred to as Dojan, italicised, with the unitalicised name referring to the individual. A similar approach is adopted for other cases in this book. 2 Campbell and Cosans v. The United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 3 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509. 4 Folgerø and Others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356. 5 Hasan and Eylem Zengin v. Türkiye, no. 1448/04, 9 October 2007. https:// hudoc.echr.coe.int/eng?i=001-82580. 6 Mansur Yalçın and Others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-146487. 7 ECtHR Dahlab v. Switzerland (2001) Application no. 42393/98. https:// hudoc.echr.coe.int/eng?i=001-22643. 8 Fernández Martínez v. Spain 56030/07 – [GC] [2014] ECHR 615, [2014] ECHR 886. https://hudoc.echr.coe.int/eng?i=001-145068. 9 Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011. https://hudoc. echr.coe.int/eng?i=001-104040. 10 Perovy v. Russia, no. 47429/09, ECHR 2020. https://hudoc.echr.coe.int/ fre?i=001-205133. 11 Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, 10 January 2017. https://hudoc.echr.coe.int/eng?i=001-170436. 12 Saniewski v. Poland Application no. 40319/98, 26 June 2001. https://hudoc. echr.coe.int/eng?i=001-5956. 13 Grzelak v. Poland, no. 7710/02, 15 June 2010. https://hudoc.echr.coe.int/ eng?i=001-99384. 14 Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992), reh’g denied, 983 F.2d 234 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993). 15 MEC for Education: Kwazulu-Natal and Others v. Pillay (CCT 51/06) [2007] ZACC 21; 2008. https://lawlibrary.org.za/akn/za/judgment/zacc/2007/ 21/eng@2007-10-05.

References Blokhuis, J. (ed.) (2023). Legal foundations of education. Bloomsbury. Bruner, J. (1996). Folk pedagogy. In The culture of education (pp. 44–65). Harvard University Press. DOI: 10.2307/j.ctv136c601.5 Bürkert, K. (2016). Fastnacht in Baden-Württemberg: Volkskundliche Forschung und gesellschaftliche Intervention in den 1960er Jahren. Österreichische Zeitschrift für Geschichtswissenschaften, 27(2), 92–118. DOI: 10.25365/oezg-2016-27-2-5 Dinham, A. (2021). Religion and belief literacy: Reconnecting a chain of learning. Policy Press.

14 Introduction Fancourt, N. (1995). Judicial boldness and the unauthorised insurer: Bates v Robert Barrow Ltd. International Insurance Law Review, 3(3), 94–97. Fancourt, N. (2015). Re-defining ‘learning about religion’ and ‘learning from religion’: A study of policy change. British Journal of Religious Education, 37(2), 122–137. DOI: 10.1080/01416200.2014.923377 Fancourt, N. (2017). Crucifixes in classrooms: The pedagogical assumptions of the European Courts. In M. Rothgangel, K. Von Bromssen, & H.-G. Heimbrock (eds.), Location, space and place in religious education. Religious diversity and education in Europe (pp. 87–100). Waxmann. Fancourt, N. (2022a). Religious freedom in English schools: Neoliberal legality and the reconfiguration of choice. Religions, 13(7), 639. DOI: 10.3390/rel13070639 Fancourt, N. (2022b). The educational competence of the European Court of Human Rights: Judicial pedagogies of religious symbols in classrooms. Oxford Review of Education, 48(2), 131–147. DOI: 10.1080/03054985.2021.1933406 Fancourt, N. (2023). Schools and Religions: The Law and the Courts – Costa Rica, England, France, Italy, Senegal, South Africa, Switzerland and Turkey. In J. Fraser-Pearce & J. Frazer (eds.), The Bloomsbury Handbook of Schools and Religion (pp. 34–52) Bloomsbury Publishing. Hendek, A., & N. Fancourt (2021). The effects of judgments by the European Court of Human Rights on religious education in England and Turkey. Religion & Education, 48(4), 436–457. DOI: 10.1080/15507394.2021.1961658 Henderson, M., J. Anders, F. Green, & G. Henseke (2020). Private schooling, subject choice, upper secondary attainment and progression to university, Oxford Review of Education, 46(3), 295–312. DOI: 10.1080/03054985.2019.1669551 Niekrenz, Y. (2014). The elementary forms of carnival: Collective effervescence in Germany’s Rhineland. Canadian Journal of Sociology (Online), 39(4), 643–665. https://www.proquest.com/scholarly-journals/elementary-forms-carnival-­ collective/docview/1645905694/se-2 Rizvi, F., & B. Lingard (2010). Globalizing Education Policy. Routledge. Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Tokofsky, P. (1999). Masking gender: A German carnival custom in its social context. Western Folklore, 58(3/4), 299–318. DOI: 10.2307/1500463 UK Government (2015). The counter-terrorism and security act. HMSO. Zucca, L. (2012). A secular Europe: Law and religion in the European constitutional landscape. Oxford Academic. DOI: 10.1093/acprof:oso/9780199592784.003.0007

2 The ECtHR in Europe Europeanisation, human rights and the role of the courts

The arguments that arose from Salzkotten Primary School in the ECtHR raise questions about the ECtHR’s educational assumptions and the answers to those depend upon national, supranational, educational and legal contexts. This chapter first reviews the ECtHR’s role as one of a number of European institutions. This role raises questions about European educational governance and so the ECtHR needs to be considered within patterns of pan-European education. Second, the specific rights in question must be outlined and reviewed, and also the legal and educational debates that they entail, since these lie at the heart of litigation such as Dojan1. Third, the adoption and juridification of human rights can be considered as one form of judicial involvement in educational decision-making. This form will be likely to vary between different constitutions, jurisdictions and judicial systems, but will also play into discussions about the role of the courts as agents of reform or as guardians of tradition and the status quo. Thus, the ECtHR is but a particular case of a more general legal issue. In order to explore the educational implications of the ECtHR’s decisions, both its role as a supranational court and then how this role might affect education across Europe need considering. Any national court’s position and authority is determined constitutionally by the state, but for a supranational court, these constitutional arrangements are themselves supranational, not least since it passes judgment on countries themselves. The European Court of Human Rights and other European institutions The ECtHR is a supranational court of appeal, which means that citizens of the 46 signatory states to the European Convention on Human Rights (‘ECHR’) (ECtHR, n.d.) can challenge governments over particular administrative decisions, as in Dojan, or over national legislation. These citizens must have first exhausted the domestic courts, taking their case through their national appeal courts. The ECtHR was established in 1959, following the signing of DOI: 10.4324/9781003393276-2

16  The ECtHR in Europe the ECHR by ten states in 1953; until 1988 citizens had first to apply to the European Commission on Human Rights (see Nußberger 2020). The ECHR comprises 18 articles, with various protocols that edit or extend them, though not all the protocols have been signed and ratified by all the signatory states to the ECHR. The Convention largely echoes the United Nations’ (1948) Declaration of Human Rights (‘UNDHR’), as well as other United Nations’ conventions such as the Convention on the Rights of the Child (United Nations, 1990). Each member state nominates one judge, and cases are heard by a panel of judges from different countries. The ECtHR’s decisions do not just apply to the state in the particular proceedings, but affect “over 850 million inhabitants, from the Arctic Ocean to the Caspian Sea [and] account for changes in many national policies, laws and living conditions in the wider Europe” (Føllesdal, Peters & Ulfstein 2013, p. 1): the decision in Dojan does not merely apply to Germany, but across Europe (Leach 2013). The ECtHR is not alone in acting across Europe and is one of several supranational European institutions. Formally, it is the juridical arm of the Council of Europe (the Council),2 in which the signatory states to the ECHR meet to support and embed human rights, democracy and the rule of law within Europe. Pursuing these aims has long led the Council to provide educational guidance for policymakers, schools and teachers, including on assessment (Peterson 1971), higher education (Salmon 1976), language learning (Council of Europe 2020), and human rights and democratic education (Council of Europe 2016a). The latter is often entwined with religious education in a complex manner but is not our concern here. Alongside the ECtHR’s case law since the 1970s on religion and education, specific guidance on religion and belief in education has increasingly been developed by the Council since the 2000s, often framing the need for knowledge about different religions and beliefs within intercultural or citizenship education (e.g., Council of Europe 2008, 2014, 2016b; Jackson 2014a; Keast 2007). However, the ECtHR has been critiqued, both per se and because it lies within the Council’s ambit. One direct concern is in establishing a coherent impartial legal culture, given that there is one judge per member state, “imagine the room where they all meet – what a mixture of languages, what diversity… what chaos!” (Arold 2007, p. 8; also Voeten 2008). Another is for imposing decisions that are out of kilter with the law, culture or traditions not only of the state involved in proceedings but also of the other states on which any decision will also fall (Popelier, Lambrecht & Lemmens 2016). Its impartiality has been called into question because some of its judges have links with human-rightsbased non-governmental organisations that bring or join cases (Puppinck & Loiseau 2020; Puppinck & Bauer 2023). There are also inevitable debates about its future focus and direction (e.g., Dzehtsiarou 2021; Spano 2018). The ECtHR’s role and effectiveness are entwined with its place within the Council of Europe (Glas 2017; Lambert 2018), so that, beyond its own

The ECtHR in Europe  17 role and position, it is also caught up in debates about the Council’s value, as an unelected supra-European super-bureaucracy (Glas 2020). If memberships of both the Council and ECtHR were widely accepted as being important in the immediate post-War and post-Cold War periods, they are increasingly called into doubt in many member states and would-be member states (Harutyunyan 2021), when both these organisations’ values are questioned. The Council and the ECtHR are both separate from the European Union (EU). This is a closer-knit political and economic entity, aimed at the free movement of people, goods, capital and services through a single internal market, which is achieved in part through the harmonisation of laws. It has seven institutions, including: its legislative arms, the European Parliament and the Council of the European Union; its executive branches, the European Commission and the European Council; the European Court of Justice (ECJ), its judicial arm, hearing cases brought under EU law. The ECJ functions differently from ECtHR, in that a national supreme court of appeal refers an issue of EU law for deliberation. Any action is almost always brought by the Commission against the member state; citizens do not appeal to the ECJ directly. For example, European Commission v. Hungary3 concerned the validity of Hungarian legislation regulating non-EU providers of higher education in Hungary, and included a conflict between World Trade Organisation laws and EU laws. The EU is considerably smaller, with only 27 member states. All EU member states are members of the Council, but not vice versa, for example, Norway (a founding member of the Council), Türkiye (since 1950) and Switzerland (since 1963). Türkiye was an early signatory to the ECHR and made some preparatory steps towards joining the EU in 1997 but these stalled in 2019; one factor was because Islam came to be seen as un-European after the Islamist terrorist attacks (Öner 2009); the question of whether Europe, and therefore by implication the EU, was intrinsically Christian was also bound up in this debate. The UK joined the EU and then left it, through Brexit (1971–2020), but remains part of the Council of Europe, though even this is currently under review. Russia joined the Council in 1996 but was expelled in March 2022 following the invasion of Ukraine; it has never been part of the EU. Like the Council of Europe, the EU has long advised member states on education, particularly given its broad socioeconomic aims on international employability. The free movement of individuals around Europe presupposes mutual recognition of qualifications and led to the development of integrated EU policies on education, notably in the formal creation of the European Higher Education Area (EHEA)4 following a Ministerial Declaration in Bologna in 1999. The case mentioned above, European Commission v. Hungary, arose out of the EHEA. More recently, since 2017, there has

18  The ECtHR in Europe been work on establishing a European Education Area (EEA), identifying shared educational aims and common policies, particularly on skills and social rights across all schooling (e.g., Council of the European Union 2021; European Commission, Directorate-General for Education, Youth, Sport and Culture 2019; European Parliament, Directorate-General for Internal Policies of the Union, Thoenes, Heriard & Prutsch 2021; Grimonprez 2020). The EEA has a skills-based, employability agenda, covering vocational education; lifelong learning; standards in literacy, mathematics and science; computer and information science; early years education; completion of secondary education; and participation in higher education. These two broad supranational organisations, the Council (with the ECtHR) and the EU (through its various institutions), should not be conflated. Indeed, their relationship matters, since two overlapping groups of states, bureaucracies and judiciaries are at work. The EU and Council work together closely through a longstanding strategic partnership, but they serve slightly different purposes. In particular, between the ECJ and ECtHR, “there is scope for significant differences” (McCrea 2016, p. 183) on issues such as the intersection of human rights and employment law, notably over the wearing of religious symbols at work. This matters if key terms such as religion, secular, neutrality or belief are (re)defined differently, either at a constitutional level or in case law in different national and supranational courts. Bernitz and Enkvist (2020) reviewed their different effects within Sweden, and Hunter-Henin (2022) considered the changing approaches to religious neutrality in both courts. Another relevant supranational institution is the Organisation for Security and Cooperation in Europe (OSCE),5 whose actions have directly fed into the wider discussions on religious education. It was established in the 1970s as a forum for dialogue across the Iron Curtain, though now its 57 strong membership extends across other continents, including the USA. In 2007, it produced a set of guiding principles through its Office for Democratic Institutions and Human Rights (OSCE/ODIHR 2007), known as the “Toledo Principles”, after the city where they were drafted. Many across Europe (and more widely) welcomed this publication (Durham, Ferrari & Santoro 2008; Jackson 2008), which was prior to any Council or EU guidance. These principles have proved valuable as a curriculum model, notably following the war in Bosnia and Herzegovina, where a new subject, “Culture of religions”, its name taken from the Toledo Principles, was implemented for pupils of all different religious communities (Štimac 2020). They have also been used as a lens for reviewing the curriculum; in Romania, Fulga (2017) found that confessional religious education classes supported the values espoused in these principles. Other global institutions are also relevant, especially UNICEF and UNESCO (Mundy 2016; Turner, Yolcu & Hüsrevsahi 2022). For instance, the Council of Europe and UNESCO have jointly published guidance on

The ECtHR in Europe  19 Roma education (UNESCO 2014). UNESCO could be directly involved in post-Soviet countries when the Council could not because those states were not yet members, and has long taken an interest in religion and education (Skeie 2024), notably in the 2000s, when it launched the “Alliance of Civilisations” initiative (United Nations Alliance of Civilizations 2006), which held that “[e]ducation systems, including religious schools, must provide students with a mutual respect and understanding for the diverse religious beliefs, practices and cultures in the world” (p. 26). Its broader aim was to combat a “Clash of Civilisations” position that held religio-cultural differences would be the major source of future political tensions, notably between the Christian West and the Islamic Middle East (Huntingdon 1993; Öner 2009). The Alliance perspective also influenced the OSCE‘s work on the Toledo Principles (see Jackson 2008). Within this international educational policy space, human rights have long been seen as a critical feature, benchmark and aspiration (Aubry & Dorsi, 2016; McCowan 2012). Especially significant for education policy is the Organisation for Economic Cooperation and Development6 (OECD). It seeks to promote economic and social progress among its 38 member countries around the world. Based in Paris, the OECD lists education as an explicit focus, and since 2000, its Programme for International Student Assessment (PISA) has monitored pupil attainment in many countries. The OECD does not set formally set policy, but its influence is strong at the national level, with a nation’s performance in the PISA tests often being a justification for policy change, notably policy borrowing from a more successful country, or for validation of a policy’s success (Auld & Morris 2016; Grek 2020). It also produces country reports commenting on that country’s educational strengths and weaknesses. It rarely comments on religious education, though it recently considered the (perhaps surprising) bedfellows of religions and unions as examples of “major social institutions that have declined” in influence (OECD 2020, p. 71), and arguing that as a result of their decline, education now had a role in balancing socialisation into “common norms and values” with supporting “positive identities and agency” (p. 71). Similarly to other supranational agencies, it also focuses on students’ intercultural competences, notably “understanding and appreciating the perspectives and worldviews of others” (OECD 2020, p. 93), implying a need for pluralistic religious education. In short, UNICEF, UNESCO and OECD are not solely focused on Europe, but their globalising work and values often play into European debates. The Europeanisation of education: a research focus Work by these various institutions over the last two decades has contributed to increasing harmonisation of education across Europe and has led to the study of the European Education Space and the Europeanisation of

20  The ECtHR in Europe education as a sub-species of educational policy research (e.g. Dale 2009; Normand 2016; Novoa & Lawn 2002). There has long been comparative research considering how different states’ educational systems operated and policies developed, but specific research on the Europeanisation of education emerged in the light of these supra-national trends, notably after the HEAA was created. Indeed, the words “European”, “education” and “space” provided the broad overlapping foci for researchers in this field, and some have inevitably considered the issues of Europe and European identity. As Lawn (2002b) pointed out, Although it appears to be clear where Europe is, it is not. It is a moving feast, capable of shape shifting, produced almost daily to reconfigure real or imagined landscapes. Territorial boundaries are unclear: the constant reference to Europe is a process of including and excluding, of confirming the project and requiring acquiescence. (p. 7) The word has geographical, political, and cultural implications, not least in terms of how these relate to individual nations and national identities. For example, it is uncertain if someone is “European” in the same manner that they are French or Finnish, and whether Europe operates in the same manner as a nation-state (e.g., Dale 2009; Ferrarotti 2002; Kushnir 2022b). The interrelationship between European and national policies remains fertile ground for research, in investigating whether and how European policies are enacted in nations, regions, schools or classrooms; for example, Banjac and Pušnik (2015) have explored how Europe and being European are positively represented in Slovenian citizenship education, and SzakácsBehling (2022) has shown how a sense of supranational European solidarity is promoted in German textbooks. Others have considered the aims and types of education that are prioritised, especially since the EU has long focused on lifelong learning, technology and employability, and they considered how these aims and types implicitly project a particular vision of Europe and the European (Sultana 2002). Several have focused on ‘space’ itself as the locus of supranational policymaking and bureaucratic oversight (e.g., Kushnir 2022a; Lawn & Grek 2012; Matarranz, Valle & Manso 2020; Ozga et al. 2011), for instance, as “a space of flows” (Coulby 2002), “networks” (Lawn 2002a, p. 19), a process of “epistemic governance” (Normand 2016), or datification (Normand 2021), as well as relations between different agencies (Grek 2014). These analyses also point to how institutionally “Europe” operates differently from its constituent nation-states. A common distinction, drawn from EU terminology (de Witte 2000), is between vertical and horizontal Europeanisation of education (Carlson, Eigmüller & Lueg 2018). The former refers to the centralising processes of supranational organisations, and the

The ECtHR in Europe  21 latter to more individual ad hoc collaborations between people, national institutions or nations. However, the focus on this emerging EU-dominated domain has led to two lacunae. First, despite the ECtHR’s long history of judgments, there is very little consideration of the part that it plays in the Europeanisation of education. This is partly because the EU-led processes have attracted more attention but in which the ECtHR has no part; moreover, there have been few educational cases before the ECJ, which might have led to an explicit look at the courts’ roles. Second, issues of religion and belief are neither in the EU policymakers’ minds, since it is not a pressing part of their agenda, nor in educational scholars’ minds, since they have generally been concerned with the nature of governance, and not what is missing from it. Europeanisation, religion and education Scholars of religion and education have also considered the effects of European institutions on their field. For some, these have broadened into wider questions about the governance of religions and religious diversity. Indeed, the involvement of these supranational institutions in education on religion and belief itself sparked comment and debate. Some reactions were positive. Early considerations of Europeanisation were from Catholic educators, which was unsurprising given that Catholic education has been international and pan-European for centuries. Responding to a European Commission report, Jonkers (2000) wanted to establish an “open dialogue” (p. 69) between Catholic education and the Commission. The Commission of the Bishops’ Conferences of the European Union continues this collaborative work, e.g. commenting on the EEA (COMECE 2022). Other scholars directly engaged with these institutions, producing materials and commenting on the developments; Jackson was directly involved with the Council in drafting support materials for teachers (Jackson 2014a) and charted the Council’s work (Jackson 2014b, 2019; Jackson & O’Grady 2019), though others noted practical difficulties for individual countries in applying policy (e.g., Bråten & Everington 2019). Schreiner has been most explicitly attentive to Europeanisation as a process, arguing, The assumption that we face a Europeanisation of education that leads to the fact that we no longer can determine education only from a national perspective. European and international processes have a growing influence on education policy and education practice and promote standardisation. (Schreiner 2016, p. 267; see also Schreiner 2011, 2013) For him, Europeanisation is a valuable development, even if it raises new challenges, such as how to develop a shared research agenda (Schweitzer & Schreiner 2020, see also Weisse 2010).

22  The ECtHR in Europe Others however have been troubled, concerned that these bodies are either inherently secularist in approach, hostile to religion both in principle and in education, or too accommodating to religions. For the former, the most obvious early critique of the Toledo Principles was from the Vatican: The Document contains a reductive view of religion and a conception of the secular nature of States and their neutrality that obfuscates the positive role of religion, its specific nature and contribution to society. In doing so, the document contradicts what has always marked the OSCE’s understanding of religion. (Banach 2007, p. 1) The Vatican did not object to the OSCE’s work per se, but to its modified view of religion in educational policy (see also Vacca 2019); indeed, the OSCE’s launch in 1973 had been chaired by a Vatican representative, and the OSCE had worked with the Vatican to support Catholics behind the Iron Curtain (Hazewinkel 1998). Some, concerned about the framing of religion in political or secular terms, went further than the Vatican. Gearon (2013) overlooked its longstanding role in supporting belief and labelled it “a former Cold War security organisation” (p. 134) that sought to appropriate religion for security uses. At the other end of the spectrum, some considered that the Toledo Principles were not secular enough; Coulby and Zambeta (2008) held that they merely advocated “traditional multiculturalism” and lamented that they were “not directly secularist, in the sense of abolishing religious teaching in public schools” (p. 293). Other European institutions were also in the spotlight. For example, the Council of Europe’s (2008) White Paper promoting intercultural dialogue, including education, was critiqued by Arthur (2011) because it: failed to do justice to the importance of Christianity within Europe; “harbour[ed] many implicit and explicit secular assumptions and commitments” (p. 74); ignored the importance of interreligious dialogue as a quest for truth. One argument was that several European institutions presented religion as irrelevant; Arthur, Gearon and Sears (2010) argued that there was a “privileging of European secular identities and secularist self-understandings that has resulted in religion being viewed by European political elites as fundamentally irrelevant to political activity or to the identity of the European citizen” (p. 13). Gearon (2012) also argued that religious education was being misappropriated for social or political goals: European religious education increasingly coheres with the political… The politicisation of religion in education differs from religious education being concerned with politics. The politicisation of religion in education

The ECtHR in Europe  23 implies not simply the focus of religion in education towards political ends, but…a model of religion in education where political ends are the predominant pedagogical goal. (p. 160, original emphasis) For Gearon, the subject is secularised by instrumentalising it for socio-political purposes, especially securitisation, in the sense of being appropriated for state security purposes (see also Gearon 2018). Three comments can be made about these different positions. First, an unresolved question is whether the traditional categories of ‘religion’ and ‘secular’ have been reconfigured through Europeanisation; religion is (re) included in the public sphere albeit through reconfigured “postnational” institutional forms (Koenig 2008, p. 227; Koenig 2015). Without a better definition of these terms, and their associates, these comments are unfocused. A supranational institution, representing different states with different constitutions of religion and state, cannot itself be constitutionally established so must perforce be secular in some sense; however, what is then meant by ‘secular’ and ‘secularisation’ at the supranational level needs more elaboration. Further, the ECtHR allows the individual to challenge a state’s secular position so that the private and the supranational can align as against the national. Thus, the ECHR and ECtHR potentially set up new rights for religious individuals to appeal against their treatment by their secular government or vice versa. Second, different European institutions can be confused and blurred. For instance, Arthur, Gearon and Sears (2010) argue that under the Convention, “individual citizens of the European Union can challenge the will of the overwhelming majority in any given territorial community anywhere in the Union” (p. 13, emphasis added). This is simply untrue. It is both better than they describe since membership of the EU does not give citizens any rights of appeal to the ECtHR, but also worse since membership of the Council of Europe is larger (46 compared to 27) and does give citizens such rights. UK citizens possess these rights by virtue of the UK being within the ECtHR, although the UK is not part of the EU. Third, the differing mechanisms of Europeanisation for generic educational processes and religion in education could be explored in more detail. Schreiner considered that the Europeanisation of religious education operated differently to the generic form: For [Lawn and Grek (2012)], the Europeanisation of education means the emergence of European education policy that has developed out of cultural policy approaches into a network of mutual support in which comparison and hard data are central. When we talk about Europeanisation and standardisation regarding religious education, we mean questions

24  The ECtHR in Europe about shared quality features, about content, and about goals that should be applied to existing models and approaches.7 (Schreiner 2016, p. 368) Based particularly on analyses of policy documents, he identified the Europeanisation of religious education as the opportunity for identifying shared features across different national settings, and the development of robust transferable pedagogies, rather than as a bureaucratic centralising of control: a horizontal rather than a vertical approach. The sensitivities around religions, and therefore religious education, mean that they are not a central part of generic Europeanisation. Moreover, he was not uncritical, noting that “European institutions’ initiatives are not free from tendencies to functionalize or instrumentalize religious education”8 (Schreiner 2016, p. 380), echoing more moderately one of Arthur’s (2011) and Gearon’s (2012) concerns. Moreover, missing from Schreiner’s analysis are the ECtHR’s judicial decisions. Whilst the ECtHR’s decisions are unlikely to result in comparisons and hard data in line with the EU-model of Europeanisation he describes, they may go beyond simply setting out common quality features, content and goals (see Hendek & Fancourt 2021). Indeed, the ECtHR might be said to impose a more vertical approach to Europeanisation through juridification of human rights obligations, so that the difference is more between two types of vertical processes, rather than between vertical and horizontal ones. To conclude, this exploration of the various supranational institutions involved in European education, and especially those involved in questions of religion and belief, shows the complex web within which ECtHR sits. Its decisions are directly under the Council’s aegis but may also overlap with policy initiatives by the EU, OSCE, OECD and UNESCO; it can be viewed as part of an ongoing process of Europeanisation of education involving all these agencies. The place of religions and beliefs may have its own peculiarities in Europeanisation, and the ECtHR’s decisions on this need nuanced consideration. However, as a court, it must reach its own decisions in the light of European human rights law, without formal regard for these contextual matters, so we now turn to the rights in question. The fundamental rights: freedom of belief and education Two rights are at stake here: the right to freedom of religion or belief, and the right to education. Freedom of religion or belief is a longstanding principle in the history of human rights (Paine 1791/1977). It was an essential element of the post-war context of the drafting of the ECHR and the ECtHR’s foundation (Evans 2001), and for rights conventions generally

The ECtHR in Europe  25 after the Shoah (Morsink 2019). Indeed, as the Court remarked in Kokkinakis v. Greece9 in 1993: [F]reedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements which go to make up the identity of believers and their conception of life, but it is also a precious asset to atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. (Paragraph 13) Cases on the place of religions and beliefs in schooling arise under two different articles: Article 9 of the ECHR, i.e., within the Convention itself, and Article 2 of Protocol 1 of the EHCR, originally a non-binding addendum, which even now only some states have formally signed. Article 9 states that 1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his/her religion or belief and freedom, either alone or in community with others and in public or private, to manifest his/her religion or belief, in worship, teaching, practice and observance. 2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. (ECtHR, undated) Subsection 1 sets up the right for individuals vis-à-vis the state and establishes broad collective rights (“in community with others”). It does not mention education but expressly includes “teaching”, though this is undefined; its place within the fourfold list leads to the inference that teaching in a place of worship is primarily intended, rather than in schools. Subsection 2 curtails those rights in relation to either broad public interests or the protection of the rights of others. Article 2 of Protocol 1 sets out rights in relation to education, stating that No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and

26  The ECtHR in Europe teaching in conformity with their own religious and philosophical convictions. (ECtHR, undated; see ECtHR 2022b) This is worded negatively in the opening sentence so that the denial of the right is prohibited. No level or quality of education is guaranteed. In the second clause, parental rights in relation to the education of their children in their beliefs are identified, for both “education and teaching”. Both Articles draw upon the UDHR, Article 18, on religion and belief, and Article 26, on education, as a version for a particular region of the world (on UDHR, see Evans 2013). ECHC’s Article 9 is similar to UDHR’s Article 26, which states: 1 Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2 Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3 Parents have a prior right to choose the kind of education that shall be given to their children. (United Nations 1948) There are however differences. The Protocol is more circumspect than Article 26. Temperman (2019) remarked on Article 9 that the “drafting history shows that the crafting of the education clause was controversial principally on grounds of religion” (p. 178). Indeed, Evans (2013) commented that freedom of religion or belief is generally not problematic in itself, but only becomes so in conjunction with another right, for example: freedom of expression, such as whether there are limits on publishing one’s views of other religions; right to work, for example, whether one can refuse to perform one’s job to certain individuals on the grounds of religion or belief; as here, education, where the issue is often the extent to which the second longer sentence applies, as Dojan showed. Unlike the UDHR, the ECHR does “not recognise such a right to education as would require [signatory states] to establish at their own expense, or to subsidise, education of any particular type or at any particular level” (ECtHR 2022a, p. 2); states are not obliged to provide anything, they simply cannot deny anything. Both address parental choice, religion and belief

The ECtHR in Europe  27 but frame these differently. In ECHR, it is for the State to respect the parental right to education and teaching “in conformity with” parental beliefs, without any wider educational goals being specified, but thereby emphasising the parents’ rights in their child’s education. The balance between children’s and parents’ rights is not easy, given legally an individual is a child from birth until 16 or 18, with restricted rights; Temperman (2019) points out that the UN Convention on the Rights of the Child (United Nations 1990) treats children more autonomously, so that “parental rights…recede… as the Child’s capacities evolve” (p. 182; see Lundy 2012). The UDHR, in Subsection 3, provides a blanket right for parents to choose, without specifying that this is in relation to religion and belief. This could cover any aspect of education and schooling. However, in Subsection 2, it specifically requires education that promotes social harmony “among all…religious groups”, thereby implying an education that addresses religiosity – or more specifically, religious difference – without necessarily implying religious education. In short, the ECHR offers explicit protection for parental rights in this area and does not set out any educational demands on the state, whereas the UDHR imposes structural and instructional requirements on the state. In the ECtHR, these Articles have led to deliberations on a wide range of issues on religion and belief in education, such as the following: students’ religious symbols and dress, especially hijab (Sahin v. Türkiye10; Dogru v. France11); teachers’ clothing (Dahlab v. Switzerland12); curriculum (Folgerø v. Norway13); assessment (Grzelak v. Poland14); classroom symbols (Lautsi v. Italy15); classroom blessings (Perovy v. Russia16); religious festivals (Dojan); sex education (Kjeldsen et al. v. Denmark17); corporal punishment (Campbell & Cosans v. United Kingdom18); physical education (Osmanoğlu and Kocabaş v. Switzerland19) (ECtHR 2022a, 2022b, 2022c; Temperman, 2019). These decisions can also involve broader issues of religious freedom, such as employment law, as noted above in discussions of overlap with EU law, religious symbols in public spaces (e.g., the ‘burkini’ ban in France), or freedom of the press. There are two other relevant articles that can arise in the case law, and will be addressed in the later chapters. Article 8, on private and family life states: 1 Everyone has the right to respect for their private and family life, their home and their correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (ECtHR, n.d., p. 11)

28  The ECtHR in Europe This article, as will be shown, is invoked in cases concerning whether teachers must adhere to particular religious doctrines and ethical demands when out of school, as in Fernández Martínez v. Spain.20 Article 14 prohibits discrimination in the securing of the other Convention rights, so is considered an ancillary right: The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (ECtHR, n.d., p. 12) This mentions religion explicitly. It is often invoked alongside A2P1 in relation to the education of ethnic minorities as it offers a wider umbrella protection (ECtHR 2022b, p. 52). However, despite the different rights with their complex interactions, there are also potential gaps within the Convention. Peroni (2015) compared the treatment of ethnic, political and religious minorities by the ECtHR to argue that while the principle of democratic pluralism is routinely defended, the lack of an article explicitly protecting minority rights, even admitting the passing reference in Article 14, means that in practice appellants from minorities tend not to succeed – as Dojan showed. The ECtHR’s decisions are both the outcome of and have an impact on the interplay between human rights and national constitutional arrangements. The formal religious or secular status of states varies from separation of the state from any religious establishment, such as the French model of laïcité, to a historically established church, such as Norway or England, or to a post-Communist re-establishment of religious identity, such as Poland or Hungary (Davis & Miroshnikova 2013; Mąkosa 2015). Moreover, as noted previously, the ECtHR’s judgments have implications across all the signatory countries: a decision about Norway has implications not only in Norway but also Türkiye, Portugal and France, even though their constitutional and educational systems are different. Indeed, a decision may also affect a different aspect of religious freedom, so the situation of a hijab-wearing teacher may have an impact on employment law in these other countries; this means that the ECtHR must also review its own jurisprudential role in balancing individual rights against the sovereignty of the signatory states. Jurisprudentially, these realities have been addressed through two legal principles in ECtHR. First, the “margin of appreciation” recognises that states will adopt their own interpretations of international human rights obligations, which will therefore differ (Legg 2012), so that the ECtHR simply sets the outer limits of possible interpretations rather than deciding on the correct interpretation. More recently, the principle of subsidiarity has emerged (Spano 2018), which recognises the states’ role in providing redress

The ECtHR in Europe  29 for human rights violations internally, so that the ECtHR simply reviews the redress mechanisms by monitoring rather than re-examining the actual decisions taken. Together, these principles suggest a more juridical than a judicial role for the Court, overseeing processes rather than making decisions. The ECtHR’s role and decisions on these legal questions inevitably generate considerable academic reaction and commentary, which can be classified within three broad overlapping approaches. First, legal theory and political philosophy approaches address the legal reasoning itself, notably by reviewing the coherence of judgments and their implications for case law (e.g., Hunter-Henin 2022; Temperman 2012b). These may raise issues of freedom of conscience (e.g., Benhabib 2010; Bhuta 2014), or constitutional issues, about a state’s religiosity, neutrality or secularism (e.g., Jiménez Lobeira 2014; Movsesian 2012; Poulter 1997). These works will often explore the legal issues around the governance of religions and will address education in this context, but bypass the educational or pedagogical questions. For instance, Temperman (2012b) is a collection of works in response to Lautsi, with two sections that include the word education, “Symbols, education, indoctrination and proselytism” and “Comparative perspectives on religious symbols and education”, but neither of them draws on educational scholarship, nor do they address educational issues. Temperman’s (2012a) own chapter is a case in point since he opens with clear statements: States are under international human rights obligations to make available free and compulsory primary school education and to make generally available secondary education—access to such state education must be universally guaranteed. State education must be provided in an objective, critical and pluralistic manner, free from religious coercion or misplaced proselytism. (Temperman 2012a, p. 145) Having made these statements, he points out: What is most remarkable in the European Court of Human Rights’ (ECtHR) symbols jurisprudence is that more often than not a number of decisive preliminary questions are not raised, let alone satisfactorily addressed. (Temperman 2012a, p. 145) He then identifies some broader questions: Who in symbols cases—and the variety of scenarios imaginable therein— can be identified as ‘rights holders’, and how far do concomitant obligations on the part of the state as principal duty bearer stretch? Under what circumstances may State neutrality be considered a legitimate ground for

30  The ECtHR in Europe limiting fundamental rights? And who is actually supposed ‘to be neutral’ according to human rights law—States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol ‘interfere’ with the rights and freedoms of others or public order? (Tempeman 2012a, p. 145) These are valuable, but strikingly none is about the pedagogical challenge of objective, critical and pluralistic teaching in relation to symbols, nor the meaning of educational neutrality, nor the distinction between the terms in the section heading of education, indoctrination and proselytism. Further, such discussions often draw on secularisation theory, from the sociology of religions, and inevitably also bleed into support for or criticism of ECtHR’s own position, discussed above, and some commentators will address both individual ECtHR cases and the Council’s or other policy documents, as noted above. Second, policy enactment approaches explore the implications of the ECtHR’s decisions for social movements and policy reform. Thus, Hendek and Fancourt (2021) compare reactions in Türkiye and England to the two decisions on the Turkish curriculum, Zengin and Yalçin, showing how the ECtHR rulings scarcely ruffled the surface of English policy, only recently creating ripples, whereas they have bedevilled Turkish policy for nearly two decades (see also Özgül 2019). Fokas (2019) addressed the indirect effects of the ECtHR’s judgments, showing how they become tropes within educational debates and campaigns, both when a particular state has been a party in ECtHR litigation, notably after Lautsi in Italy (Giorgi & Annicchino 2019), but also for other states, for example, Greece (Markoviti 2019) or Romania (Popa & Andreescu 2019). The judgment, and threat of litigation by activists, becomes a ‘shadow’ in these arguments in several countries (Popa & Andreescu 2019). A third approach focuses on judges’ pedagogical or educational assumptions, to interpret their judgments in the light of educational research and scholarship, rather than in the light of legal, political or sociological theories, and this is the approach that I will be adopting here. For example, Cumper (2011) analysed different ECtHR decisions on religious education and showed that there was “a latent uncertainty as to how religion should be taught in the classroom” (p. 222), notably a failure to distinguish between religious instruction, as faith nurture, and religious education, as a potentially more objective subject. Further, Cumper and Lewis (2018) argued that there was a lack of empathy with appellants in decisions on religious dress in educational settings, echoing concerns about the treatment of minorities by the ECtHR. Elsewhere, I have considered how judges made pedagogical sense of the socio-spatial settings of classrooms in two cases on religious symbols, Dahlab and Lautsi (Fancourt 2017, 2022); the concept of judicial pedagogies is first discussed in the latter paper.

The ECtHR in Europe  31 Courts and educational decision-making In focusing on judges’ decision-making, the structural role of the courts should be considered, given the usual constitutional arrangement separating the three branches of government into legislature, executive and judiciary. As noted above, the ECtHR is the Council’s judicial branch; whilst it can adjudge cases, it cannot itself generate policy documents, enact laws or new Articles, nor support policymakers or teachers. In Dojan, the ECtHR was not involved in any of the ensuing steps on sex education or celebrating festivals in the school, town, region or country. The efficacy of judicial decisions is an issue in many countries, so wider scholarship can help identify how the ECtHR’s decisions sit within governance and can also suggest the processes and challenges involved for the parties, and for the courts. Indeed, the courts’ role in addressing educational issues has been recognised for several decades especially as they are often seen as enforcers or promulgators of educational reforms. At one level, the adoption of the Convention and acceptance of the ECtHR’s authority can be seen as the implementation of a reforming agenda by the member states. It is the formal acceptance of rights within a meta-judicial process of appeal. However, the court’s role is more apparent in some jurisdictions than others, particularly those where recourse to the courts is frequent, notably the US, where there has been considerable litigation around the First Amendment (see Russo 2012). In general, a court’s role is particularly complex when ambiguities and contradictions emerge. There can be discrepancies between new and old laws, or intersecting legal issues (Heise 2002), and courts must decide whether new legislation on one issue should supersede overlapping older law on another; thus, Superfine (2013) analysed the intersection of standards-based accountability law and policy with school-financing law and policy in the US, showing how different and evolving conceptions of equality were often at stake. Tensions emerge between local, national or supranational jurisdictions, such as between state and federal legislation and court, in the US – or between the ECHR and national laws. These tensions problematise the nature and limitations of the courts’ powers – and litigation itself – as catalysts for change. Judicial decisions can advance reform by creating case law, even though they are decided under existing law on the particular facts in question, and the judiciary takes no further action in implementing its decision once the litigation ends. Some scholars have been pessimistic about the courts’ potential for enforcing change. Rosenberg (1991) titled his study “The hollow hope” when considering the structural, legal and social factors that impeded change through the US courts across various issues, notably education. From an analysis of the US Supreme Court’s decisions, he argued that courts are inevitably “constrained” rather than “dynamic” (Rosenberg 1991, pp. 2–4). Others have questioned Rosenberg’s claims, sought to soften them as

32  The ECtHR in Europe regards the US (e.g., Schultz & Gottlieb 1996), or to consider if these findings also apply elsewhere, notably India (Rosenberg, Krishnaswamy & Bail 2019). However, in England and Wales, Sky (1988) pre-empted Rosenberg’s claim when he considered whether “the collective work of the judiciary served to promote or defeat the values and objectives that society has assigned to education” (p. 205) and concluded for the latter. Clearly, one cannot naively assume that they implement positive change. These arguments echo discussions about the role of legal decisions in grassroots mobilisation, discussed above (e.g., Fokas 2019). Recently, Perry-Hazan (2015a, 2015b; Perry-Hazan & Perelstain 2018) investigated the role of the courts in determining Haredi education in Israel, the USA and Belgium. Haredi education typically focuses on and is devoted to religious nurture. While many cases have typically been brought by minorities to safeguard their educational rights, in the Haredi context, other organisations took legal action against Israel’s approval of Haredi education, because it was considered to be educationally inadequate for students. However, the Haredi community are key powerbrokers in the Knesset, so administrative initiatives against or about them are treated sensitively. Court’s decisions, including those of ECtHR, are increasingly embroiled in a tangled web of religious, educational, legal and policy debates. There is a complex matrix of individuals, informal groups, and other organisations deploying a variety of strategies inside and outside of the courts to effect educational change, using the law and the courts strategically. Courts around the world, including the ECtHR, are therefore important and powerful sites of contestation, but simultaneously they are constrained by the process of litigation, and the ways in which individuals and organisations may deploy litigation for their own purposes. Conclusion In conclusion, the ECtHR’s role in European educational decision-making is complex. First, its place among various European institutions means it functions as one of them, but it is also distinctive because it uniquely has a judicial function that gives individuals rights against states, and its judgments apply across Europe. However, in recent decades, the Europeanisation of education has developed, both generally, particularly within the EU, as well as for religions and beliefs in education, but these two processes of Europeanisation are arguably distinct. Further, the role of the ECtHR has been largely overlooked in analyses of both processes. Second, it must apply the various Articles of ECHR, together with its Protocols, which are drafted in a precise and particular manner, drawing on but contrasting with other human rights texts. Finally, while courts as upholders of the law are seen as powerful, on the one hand, their effectiveness may paradoxically be limited

The ECtHR in Europe  33 by their juridical capacity, rather than as part of the executive that can enact these decisions, and on the other, litigation and the courts have become resources for different groups to attempt to exert influence more widely, whether by taking matters to courts, by strategic reference to previous cases or by threat of action. Here again, the wording of courts’ decisions matters, as an unrealistic or unclear approach to education may mean that it is essentially unworkable in schools as law, or that it has unintended consequences. Further scrutiny of the ECtHR’s decisions on religion and education is therefore valuable since they play into debates about the place of religions and beliefs within the Europeanisation of education, about the inter-­ relationship between the two rights themselves, and about courts more generally as agents of reform. However, current discussions of these issues tend to focus more on the wider and broader questions of the creation and enlargement of the policy space, the issues for human rights, questions of secularisation, or the scope and limits of the courts. What are less explored are the more fundamental educational assumptions on which these are built. The next chapter will therefore consider how best to scrutinise legal judgments with this in mind. Notes 1 Dojan and Others v. Germany (dec.), nos. 319/08 and 4 others, 13 September 2011. https://hudoc.echr.coe.int/eng?i=001-106382. 2 https://www.coe.int/en/web/about-us. 3 European Commission v. Hungary C-66/18 2020. 4 http://www.ehea.info/. 5 https://www.osce.org/. 6 https://www.oecd.org/. 7 Translation NF: Für Lawn/Grek bedeutet die Europäisierung von Bildung das Entstehen einer europäischen Bildungspolitik, die sich aus kulturpolitischen Ansätzen zu einem Netzwerk gegenseitiger Unterstützung entwickelt hat, in der Vergleiche und harte Daten zentral sind. Sprechen wir von Europäisierung und Standardisierung im Blick auf den Religionsunterricht, so sind damit Fragen nach gemeinsamen Qualitätsmerkmalen, nach Inhalten und nach Zielsetzungen gemeint, die bei bestehenden Modellen und Ansätzen zum Tragen kommen sollen. 8 Translation NF: Die Initiativen der Europäischen Institutionen sind nicht frei von Tendenzen einer Funktionalisierung oder Instrumentalisierung religiöser Bildung. 9 Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) (1993), p. 13. https:// hudoc.echr.coe.int/eng?i=001-57827. 10 Sahin v. Türkiye, 44774/98, 44 Eur. H.R. Rep. 99 (2005). https://hudoc.echr. coe.int/eng?i=001-70956. 11 Dogru v. France, no. 27058/05, ECtHR (Fifth Section), 4 March 2009. https://hudoc.echr.coe.int/eng?i=001-90039. 12 Dahlab v. Switzerland, Application no. 42393/98 (2001). https://hudoc.echr. coe.int/eng?i=001-22643.

34  The ECtHR in Europe 13 Folgerø and Others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356. 14 Grzelak v. Poland, no. 7710/02, ECtHR (Fourth Section), 22. https://hudoc. echr.coe.int/eng?i=001-99384. 15 Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011. https://hudoc. echr.coe.int/eng?i=001-104040. 16 Perovy v. Russia, no. 47429/09, 20 October 2020. https://hudoc.echr.coe. int/eng?i=001-205133. 17 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509. 18 Campbell and Cosans v. The United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 19 Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, 10 January 2017. https://hudoc.echr.coe.int/eng?i=001-170436. 20 Fernández Martínez v. Spain 56030/07 – [GC] [2014] ECHR 615, [2014] ECHR 886. https://hudoc.echr.coe.int/eng?i=001-145068.

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The ECtHR in Europe  39 Legg, A. (2012). The margin of appreciation in international human rights law: Deference and proportionality. Oxford Academic. https://doi.org/10.1093/acpr of:oso/9780199650453.001.0001 Lundy, L. (2012). Children’s rights and educational policy in Europe: The implementation of the United Nations Convention on the Rights of the Child. Oxford Review of Education, 38(4), 393–411. DOI: 10.1080/03054985.2012.704874 Mąkosa, P. (2015). Confessional and catechetical nature of religious education in Poland. The Person and the Challenges. The Journal of Theology, Education, Canon Law and Social Studies Inspired by Pope John Paul II, 9(2), 53–66. https://www. ceeol.com/search/article-detail?id=469347 Markoviti, M. (2019). In-between the constitution and the European Court of Human Rights: Mobilizations around religion and education in Greece. Politics and Religion, 12(S1), S31–S54. DOI: 10.1017/S1755048318000020 Matarranz, M., J. M. Valle, & J. Manso (2020). Después del 2020… Hacia un espacio europeo de educación en 2025. Revista Española De Educación Comparada, 36, 98–128. DOI: 10.5944/reec.36.2020.27040 McCowan, T. (2012). Human rights within education: assessing the justifications. Cambridge Journal of Education, 42(1), 67–81. DOI: 10.1080/0305764X.2011.651204 McCrea, R. (2016). Singing from the same hymn sheet? What the differences between the Strasbourg and Luxembourg courts tell us about religious freedom, non-discrimination, and the secular state. Oxford Journal of Law and Religion, 5(2), 183–210. DOI: 10.1093/ojlr/rwv067 Morsink, J. (2019). The Universal Declaration of Human Rights and the holocaust: An endangered connection. Georgetown University Press. Movsesian, M. (2012). Crosses and culture: State-sponsored religious displays in the US and Europe. Oxford Journal of Law and Religion, 1(2), 338–362. DOI: 10.1093/ojlr/rws006 Mundy, K. (ed.). (2016). The handbook of global education policy. Wiley Blackwell. Normand, R. (2016). The changing epitemic governance of European education: The fabrication of the Homo Academicus Europeanus? Springer. Normand, R. (2021). The new European political arithmetic of inequalities in education: A history of the present. Social Inclusion, 9(3), 361–371. Novoa, A., & M. Lawn (eds.). (2002). Fabricating Europe: The formation of an education space. Kluwer. Nußberger, A. (2020). The European Court of Human Rights. Oxford University Press. OECD (2020). PISA 2018 results (volume VI): Are students ready to thrive in an interconnected world? PISA OECD Publishing. Öner, S. (2009). Turkey’s membership to the EU in terms of “clash of civilisations”. Journal of Interdisciplinary Economics, 20(3–4), 245–261. DOI: 10.1177/ 02601079X09002000304 OSCE/ODIHR (2007). Toledo guiding principles on teaching about religions and beliefs in public schools. OSCE/ODIHR. Ozga, J., P. Dahler-Larsen, C. Segerholm, & H. Simola (eds.) (2011). Fabricating quality in education: Data and governance in Europe. Taylor & Francis. Özgül, C. (2019). Freedom of religion, the ECtHR and grassroots mobilization on religious education in Turkey. Politics and Religion, 12(S1), S103–S133. DOI: 10.1017/S1755048318000779

40  The ECtHR in Europe Paine, T. (1977). Rights of man. Penguin [first published 1791]. Peroni, L. (2015). Minorities before the European Court of Human Rights: Democratic pluralism unfolded. In J. Boulden & W. Kymlicka (eds.), International approaches to governing ethnic diversity (pp. 25–50). Oxford University Press. DOI: 10.1093/acprof:oso/9780199676583.003.0002 Perry-Hazan, L. (2015a). Court-led educational reforms in political third rails: Lessons from the litigation over ultra-religious Jewish schools in Israel. Journal of Education Policy, 30(5), 713–746. DOI: 10.1080/02680939.2014.987829 Perry-Hazan, L. (2015b). Curricular choices of ultra-Orthodox Jewish communities: Translating international human rights law into education policy. Oxford Review of Education, 41(5), 628–646. DOI: 10.1080/03054985.2015.1074564 Perry-Hazan, L., & O. Perelstain (2018). Mobilizing ethnic equality in admissions to schools: Litigation, politics, and educational change. Journal of Educational Change, 19(1), 51–75. DOI: 10.1007/s10833-017-9308-x Peterson, A. (1971). New techniques for assessment of pupils work. Committee for General and Technical Education. Popa, M., & Andreescu, L. (2019). Religion and education in Romania: Social mobilization and the “shadow” of the European court of human rights. Politics and Religion, 12(S1), S79–S102. DOI: 10.1017/S1755048318000068 Popelier, P., S. Lambrecht, & K. Lemmens (eds.). (2016). Criticism of the European Court of Human Rights: Shifting the convention system: Counter-dynamics at the national and EU Level. Cambridge University Press. DOI: 10.1017/ 9781780685175 Poulter, S. (1997). Muslim headscarves in school: Contrasting legal approaches in England and France. Oxford Journal of Legal Studies, 17(1), 43–74. DOI: 10.1093/ojls/17.1.43 Puppinck, G., & N. Bauer (2023). The impartiality of the ECHR: Concerns and recommendations. European Centre for Law and Justice. Puppinck, G., & D. Loiseau (2020). NGOs and the Judges of the ECHR: 2009 – 2019. European Centre for Law and Justice. Rosenberg, G. (1991). The hollow hope: Can courts bring about social change? University of Chicago Press. Rosenberg, G., S. Krishnaswamy, & S. Bail (2019). A qualified hope: The Indian Supreme Court and progressive social change. Cambridge University Press. Russo, C. (2012). Introduction. In C. Russo (ed.), Religion in schools. Sage. Salmon, M. (1976). Present situation of and trends in tertiary education in Europe : A report of the 32nd meeting of the Council of Europe’s Committee for Higher Education and Research held in Strasbourg on 5-7th November, 1975. Council of Europe. Schreiner, P. (2011). Situation and current developments of religious education in Europe. In L. Franken & P. Loobuyck (eds.), Religious education in a plural, secularised society: A paradigm shift (pp. 17–34). Waxmann. Schreiner, P. (2013). The perspectives of the European institutions concerning the place of religion in education. Pedagogiek, 33(2), 90–102. Schreiner, P. (2016). Europäisierung religiöser Bildung? Religionspädagogik und internationale Standardisierungsprozesse. [Europeanisation of religious formation? Religious education and international standardisation processes] Zeitschrift für Pädagogik und Theologie, 68(3), 367–380. https://doi.org/10.1515/ zpt-2016-0037

The ECtHR in Europe  41 Schultz, D., & S. E. Gottlieb (1996). Legal functionalism and social change: A reassessment of Rosenberg’s ‘The Hollow Hope: Can Courts Bring About Social Change?’. The Journal of Law & Politics, 12(1), 63–92. Schweitzer, F., & P. Schreiner (2020). International knowledge transfer in religious education: universal validity or regional practices? Backgrounds, considerations and open questions concerning a new debate. British Journal of Religious Education, 42(4), 381–390. DOI: 10.1080/01416200.2019.1701987 Skeie, G. (2024). Global Education Policy on Religion and Education: UNESCO. In L. Gearon, A. Kuusisto, S. Poulter, A. Toom, & M. Ubani (eds.), (2023). Religion and worldviews in education: The new watershed (pp. 71–89). Routledge. DOI: 10.4324/9781003265696 Sky, T. (1988). Of royal courts and British school boards: Judicial review of local education authority action under central government school law in England and Wales. Journal of Law & Education, 17(2), 203–242. Spano, R. (2018). The future of the European Court of Human Rights—Subsidiarity, process-based review and the rule of law. Human Rights Law Review, 18(3), 473– 494. DOI: 10.1093/hrlr/ngy015 Štimac, Z. (2020). ‘Culture of Religion’ – A controversial secular school subject. British Journal of Religious Education, 42(1), 65–74 DOI: 10.1080/ 01416200.2018.1516194 Sultana, R. (2002). Quality education and training for tomorrow’s Europe: A contrapuntal reading of European Commission documents. In A. Novoa & M. Lawn (eds.), Fabricating Europe: The formation of an education space (pp. 109–130). Kluwer. Superfine, B. M. (2013). Equality in education law and policy, 1954–2010. Cambridge University Press. Szakács-Behling, S. (2022). Schooling for transnational solidarity? A comparison of differently Europeanising school curricula in Germany. Globalisation, Societies and Education, 20(4), 492–507. DOI: 10.1080/14767724.2021.1944066 Temperman, J. (2012a). Religious symbols in the public school classroom. In J. Temperman (ed.), The Lautsi case: Multidisciplinary reflections on religious symbols in the public school classroom (pp. 143–175). Brill. Temperman, J. (ed.). (2012b). The Lautsi case: Multidisciplinary reflections on religious symbols in the public school classroom. Brill. Temperman, J. (2019). Education and freedom of religion or belief under the European Convention on Human Rights and Protocol No. 1. In J. Temperman, T. J. Gunn, & M. D. Evans (eds.), The European Court of Human Rights and the freedom of religion or belief. Brill. https://doi.org/10.1163/9789004346901_010 Temperman, J., T. J. Gunn, & M. D. Evans (eds.). (2019). The European Court of Human Rights and the freedom of religion or belief. Brill. Turner, D., H. Yolcu, & S. P. Hüsrevsahi (eds.) (2022). The role of international organsizations in education. Brill. UNESCO (2014). Inclusion from the start: Guidelines on inclusive early childhood care and education for Roma children. UNESCO/Council of Europe. United Nations (1948). Declaration of human rights. United Nations United Nations (1990). Convention on the rights of the child. UNICEF. United Nations Alliance of Civilizations (2006). Report of the high level group. United Nations. http://www.unaoc.org/repository/HLG_Report.pdf

42  The ECtHR in Europe Vacca, M. (2019). Education and religious freedom in the Toledo guiding principles: comparative analysis between the holy see and the united states. Arizona Journal of International and Comparative Law, 36(2), 111–132. Voeten, E. 2008. The impartiality of international judges: Evidence from the European Court of Human Rights. American Political Science Review, 102(4), 417–433. DOI: 10.1017/S0003055408080398 Weisse, W. (2010). REDCo: A European research project on religion in education. Religion & Education, 37(3), 187–202. DOI: 10.1080/15507394.2010.513937

3 Judicial pedagogies Concept and methodological approach

In the previous chapter (Chapter 2), the ECtHR’s decisions have been shown both to have constrained but potentially weighty effects and to be critiqued and analysed from different fields of research and scholarship, including education and law. To reach these decisions, the ECtHR’s judges will make educational assumptions, or what are termed here “judicial pedagogies”. This chapter explains the development of the term and is in three sections. The first considers where these pedagogies sit within the judicial process, especially the educational competence of the courts. Second, the term ‘judicial pedagogy’ is fully explored, both in relation to theories of teaching and learning, and as a description of the theories of or assumptions about teaching and learning that are held by particular individuals or groups. Last, the overall research aim and two research questions are formulated and discussed, leading to a description of the approach taken in the next stages of the analysis. The educational competence of the courts The role of the ECtHR, and indeed any court, is potentially powerful but problematic because its decisions sit within its structural constraints, as outlined in the previous chapter, notably including the lack of any executive function and the haphazard manner in which issues arise before it. In her study of the Israeli courts’ decisions on Haredi schools in Israel, mentioned in Chapter 2, Perry-Hazan (2015) developed a distinctive analytical model of the courts. First, she suggested considering their ex-ante position, notably their constitutional position, under the axis of legitimacy. Their powers are circumscribed by their relationship to other branches of government and other courts – whether domestic or international – and by prescribed processes of jurisprudential reasoning. To apply this model to the ECtHR, this axis is delimited by the ECtHR’s relationship with the Council, the terms of the ECHR, its position as a supranational court, and the formal mechanisms for bringing matters before it. DOI: 10.4324/9781003393276-3

44  Judicial pedagogies Alternatively, the courts’ role can be explored ex-post, by reviewing their judgments across two further axes: competency and effectiveness (PerryHazan 2015). First, the axis of competency refers to judges’ understanding of the issues before them. Judge Bonello’s claim, mentioned in Chapter 1, in Lautsi v. Italy1 that teaching is an “unambiguous word” should also be recalled, as a potential example of a lack of understanding of what is at stake in such decisions. Elsewhere I have termed this educational competence to avoid confusion with legal ‘competency’ to describe a court’s authority to hear a particular case (Fancourt 2022). Educational competency can be considered to be weak when courts “lack the ability to obtain, understand, and process the data that constitute the basis for complex policy decisions”, or strong when they may “apply clear guidelines in the legal framework” or indeed “invite a variety of experts to participate in the formulation of rulings” (Perry-Hazan 2015, p. 719). It is unclear why the participation of experts was singled out as part of this competence, though it does impliedly recognise that judges lack expertise. However, experts might participate but their views could be simply ignored in the final decision, or judges might be competent without them, and this suggestion is not a key part of my argument here. Instead, the focus is on the ECtHR’s understanding and processing of the facts before them, and its delivery of clear, educationally workable rulings. The ECtHR’s understanding and processing of the facts can be illuminated by Cumper’s (2011) claim, discussed above, that the ECtHR long found it difficult to distinguish between religious instruction and religious education. Indeed, Cumper and Lewis (2018) also claimed that the ECtHR’s judges lacked empathy towards appellants who wanted to wear religious dress or symbols, concluding that “the ECtHR needs to move in a new direction, make an empathic turn, and show that it takes religious dress seriously” (p. 87), which can be seen as another aspect of competence. The second ex-post axis is effectiveness, which is the extent to which schooling is genuinely influenced by the decision. This can also be weak when courts “cannot produce significant and effective social change without political support [and] judicial rulings generate unintended consequences” (Perry-Hazan 2015, p. 719), or it can be strong if they ‘facilitate educational reform … transform political and public discourse … [and] develop rights consciousness’ (p. 719). For the ECtHR, its effectiveness is potentially strong in that its jurisdiction covers all of Europe, in the sense of all the signatory states, and because it can overrule national courts. However, its effectiveness could also be jeopardised by the fact that it largely relies on these signatory states to implement its decisions, and they might take a very restrictive view of the legal or policy changes required to achieve compliance or might consider that legal or policy changes in the meantime have satisfactorily addressed the issue. This was the Turkish government’s argument after Zengin v. Türkiye,2 in 2007, on the representation of Alevism in the curriculum (Hendek & Fancourt 2021). Another element in effectiveness,

Judicial pedagogies  45 the transformation of “political and public discourse”, may be conducted by other organisations, both within member states and supranationally. Indeed, these other groups may become parties to the appeal, invested in the outcome, and therefore likely to seek to promote it if they are successful; in Lautsi, a range of states apart from Italy, as well as several human rights organisations become involved. The third element in the quotation from Perry-Hazan given above, ‘rights’ consciousness’, is striking since she was not explicitly addressing human rights issues. The ECtHR might be said to promote this explicitly, though a caveat is the balancing of the two rights, and indeed the indirect creation of potentially unrealistic expectations, as in Dojan, when the appellants brought their cases in the ultimately mistaken belief that their rights were being infringed. Those wishing to influence education would hope for competent and efficient decisions, though this may be hard to achieve for the reasons given previously when discussing Rosenberg’s (1991) “hollow hope” for reform litigation (see McCann 1992), and clearly, these latter two axes are related, but not causally. Weak competency may lead to weak effectiveness, in that a judgment that inadequately addresses the educational issues of the case may be unlikely to be taken up in schools. However, as Galanter observed, “[c] ourts produce not only decisions, but messages. These messages are resources that parties use in envisioning, devising, pursuing, negotiating, vindicating claims (and in avoiding, defending, and defeating them)” (Galanter 1983, p. 126), so weak competency may be strongly effective because of its rhetorical or emblematic value (Heise 2002) – even if those particular effects are unintended. Further and unsurprisingly, strong competency will not necessarily always result in strong effectiveness since an educationally nuanced and robust decision would still need various other factors to be in place to take effect across Europe. On the concept of judicial pedagogies Educational competence is a general term. Here, I focus on judges’ assumptions about teaching and learning, and which thereby underpin their decisions. These are termed “judicial pedagogies”. This does not here mean educational approaches to the training of judges, which I term “judicial education” and discuss below. I initially applied the term “judicial pedagogies” to two ECtHR decisions about religious symbols in classrooms, Dahlab v. Switzerland,3 on a teacher’s right to wear hijab in the classroom, and Lautsi, on whether displaying a crucifix in a classroom was an infringement of the right of atheist pupils (Fancourt 2022). It is however not limited to the pedagogy of symbols and covers a range of views of teaching and learning. Clearly, the term does not mean judges’ legal findings on educational issues; these are summarised in education law reports, and notably the ECtHR’s (2022a) most recent legal summary of decisions under Article 2,

46  Judicial pedagogies Protocol 1 and Article 9 (ECtHR 2022b). Also, while it is broad, there are aspects of educational competence that the term would not normally include, such as an understanding of school finance (see Superfine 2013). These educational areas have raised concerns in some jurisdictions, notably the USA, but are not intrinsically pedagogical. Rather, the term draws on Bruner’s notion of “folk pedagogies” (Bruner 1996, p. 44; Olson & Bruner 1996), which he described as a subset of folk psychology. Folk psychology is an older term, from Wundt (1916), referring to “our everyday intuitive theories about how other minds work… and they also reflect some deeply ingrained cultural beliefs about ‘the mind’” (Bruner 1996, p. 44). Within these general theories of mind, there is a specific subgroup that addresses how learning happens: “Not only is folk psychology preoccupied with how the mind works here and now, it is also equipped with notions about how the child’s mind learns and even what makes it grow” (p. 46). The word “folk” is not intended disparagingly, but rather as recognition of commonality and ubiquity. Indeed, [I]n theorizing about the practice of education in the classroom (or any other setting, for that matter), you had better take into account the folk theories that those engaged in teaching and learning already have. (p. 46) Bruner’s aim was not to challenge or critique what one might perceive to be erroneous perspectives, but simply to uncover them: Folk beliefs of this kind, whether expressed by laypeople or by ‘experts,’ badly want some ‘deconstructing’ if their implications are to be appreciated. For whether these views are ‘right’ or not, their impact on teaching activities can be enormous. (Bruner 1996, p. 49) Thus, everyone has a set of assumptions about learning which must be laid bare to understand their consequences for learners. Bruner’s focus was particularly on the potential mismatch between teachers’ and pupils’ perspectives, when pupils were unreflectively operating within their own assumptions about the process, but which did not match their teachers’ assumptions, who were also operating unreflectively. He considered that these positions could vary considerably: Different approaches to learning and different forms of instruction – from imitation, to instruction, to discovery – reflect differing beliefs and assumptions about the learner – from actor, to knower, to private experiencer, to collaborative thinker. (p. 50)

Judicial pedagogies  47 They reflect different views of the learner: Folk pedagogies…reflect a variety of assumptions about children: they may be seen as willful and needing correction; as innocent and to be protected from a vulgar society; as needing skills to be developed only through practice; as empty vessels to be filled with knowledge that only adults can provide; as egocentric and in need of socialization. (p. 49) Thus, the question is what pedagogies the ECtHR’s judges impliedly hold, for instance, on sex education in Dojan. Bruner elaborated four broad models: children as imitative learners, when a child learns by being shown what to do and copying it; learning from didactic exposure, in presenting the “facts, principles and rules of action which are to be learnt, remembered and then applied” (p. 55); children as thinkers, in which children’s innate understandings of the world are recognised and learning is about understanding “better, more powerfully, less one-sidedly” (p. 56); children as knowledgeable, who must learn to grasp the distinction between their own personal knowledge and culturally accepted forms of objective knowledge, as an interpretive process. Bruner was arguing neither that one of these models was superior to the rest, nor that one would ever be found on its own: “Real schooling, of course, is never confined to one model of the learner or one model of teaching” (Bruner 1996, p. 63). They each offered a distinctive perspective on an aspect of teaching and learning. He did, however, hope that they would be united in a broader integrated theory. Other researchers have also highlighted the challenges and benefits of contrasting theories of learning. Sfard (1998) commented on the dichotomy between two metaphors of learning in educational research: acquisition and participation. Under the acquisition metaphor, “[c]oncepts are to be understood as the basic units of knowledge that can be accumulated, gradually refined, and combined to form ever richer cognitive structures” (p. 5). Under the more recent participation metaphor, “learning a subject is now conceived as a process of becoming a member of a certain community…entail[ing], above all, the ability to communicate in the language of this community and act according to its particular norms” (p. 6). Put simply, in Dojan, the parents’ concerns with sex education were about acquisition, but their concerns with Lütke Fastnacht were about participation. For the former, their children would be given wrong, unethical information; for the latter, they would be doing inappropriate activities. She also did not argue for one or the other, but that both metaphors were needed to prevent one of them from becoming the basis of “extreme one-for-all practical recipes” (p. 10). Thus, both Bruner and Sfard were acutely aware of the importance of recognising, but not selecting between, different models or metaphors.

48  Judicial pedagogies Bruner’s concept has been put to use in researching different settings or aspects of the teacher/learner relationship, for example: Brooks and Kitto (2021) explore the mismatch between the training and methods in early years settings in China being proposed by international agencies and the folk pedagogies of parents and some staff. The international agencies often drew on the third and fourth approaches, with a strong view of the children’s cognitive capacities, whereas parents and some staff adopted the first two, prioritising the role of the teacher. Other examples are in teacher education (Ilic & Bojovic 2016), or the use of technology in higher education (Drumm 2019). These researchers have sought to uncover how quasi-­ intuitive, often cultural assumptions about learning can be held by educators and other stakeholders within different educational settings, which can create muddles. The use of judicial pedagogies is therefore intended to indicate that judges’ educational assumptions should be taken seriously to appreciate better their implications. There are two important steps. The first is extending it beyond teachers to a different category of professionals. Judges are clearly experts in one (legal) sense, though not typically as educational theorists. However, the impact of their views on teaching activities and what happens in schools more broadly will be significant – for any court and not least for ECtHR. As will be discussed soon, Bruner later explored law-making and the courts, and indeed collaborated on the analysis of judicial decisions, but focusing on rhetoric, not pedagogy (Amsterdam & Bruner 2000). The second step concerns the breadth of the word “pedagogy”. As previously noted, it is not used here to cover every aspect of educational competence but is still used expansively, particularly to include curriculum and assessment, which are often considered separate but interlinked aspects of education. In Bernstein’s (1973) famous contrast, “[c]urriculum defines what counts as knowledge, pedagogy defines what counts as valid transmission of knowledge, and [assessment] defines what counts as valid realisation of this knowledge on the part of the taught” (p. 228). The Council (2016) notably uses this triple classification in a guide to “competences for democratic culture” (CDC), offering advice on “CDC and curriculum…CDC and pedagogy…CDC and assessment” (p. 3). Confusingly however in another guidance document, for language education (Council of Europe 2020), it initially distinguishes between learning, teaching and assessment, but goes on to highlight the coherence between “curriculum, teaching and assessment” (p. 27, emphasis added). Its own incoherence in the use of terms does not help its argument. Pedagogy can be used in a wider sense, for example, in “critical pedagogy” (Freire 1997), to encompass these different educational processes more broadly, or in ways that conflate it with curriculum (Stahl 2020). A challenge is that there is no alternative term for the combination of these

Judicial pedagogies  49 three elements: indeed some use “curriculum” in this wider sense. The narrower scope of curriculum, as what is to be learnt, is vital, and most people have strong views on what their children should learn, about the relative value of different subjects, the justification for specific subjects, and indeed for specific content, skills or topics within subjects. Pedagogy in the narrow sense also matters, in that most people will have views on how didactic or pupil-led teaching should be, or on the appropriate support for their child, be they high attaining and/or having particular learning needs, for example, dyslexia or Autistic Spectrum Disorder. The nature and structure of school assessment systems, of the relative merits of and relations between formative and summative assessment, and of national examinations are also the focus of highly charged debates. Finally, the interconnections between these elements also matter, often framed as a quest for alignment, but not always realised (e.g., Baird et al. 2017). As noted, the term is distinguished from “judicial education” as the education or training of judges (e.g., Armytage 2015; Domitrovich 2017); sporadically “judicial pedagogies” has been used in this sense, or “legal pedagogies” (Freckelton 1997; Jukier 2016). This is a significant subspecies of vocational education internationally, especially when states are rapidly establishing an independent judiciary, or when a litigious field is changing fast, such as neuroscience (Runkle 2017) or technology (Dixon 2020). It is complex comparatively because routes into the judiciary vary considerably, notably between those countries in which becoming a judge is an early career choice, such as France or Germany, and those in which it is a late career progression after working as a lawyer, as in England and Wales. In both approaches, there are the challenges of ensuring, for example, academic legal competence, an understanding of the management of litigation and the court, professional ethics, and a wider awareness of social or economic issues behind cases. There are often calls for better education and research on pressing topics, such as gender (e.g., Dawson, Schultz & Shaw 2014) or sustainability (e.g., Besco 2018). As far as European courts are concerned, the challenge of reaching relevant, informed decisions is well recognised, both under EU law by judges in different jurisdictions (Mayoral, Jaremba & Nowak 2014), and more generally by Piana et al. (2013). The latter’s report on judicial training sets out various recommendations including in “non-legal subjects”, such as “economics, psychology, professional ethics, communication and management skills, ICT” (p. 292). Education, religion and belief are not listed, but as they suggest: Judges need to acquire special knowledge of the societal field they deal with. Because not every judge should know everything, the court organization should see to it that every court has adequate non-judicial

50  Judicial pedagogies knowledge and skills available with judges in order to be able to solve problems brought before the courts (e.g., children…). (p. 292) One challenge is that judges’ pre-existing judicial pedagogies may lead them to assume that either they have the relevant knowledge, or it is unnecessary since the issue is “unambiguous”. The lack of any mention of religion and belief in the ‘non-legal’ subjects is a reminder of current discussions about the need for religious literacy, or rather religion and belief literacy (Dinham 2021). There is increasing recognition that beyond the school curriculum, an understanding of different religions and non-religious beliefs should be developed in a range of “semi-formal learning spaces, especially professions and workplaces” (Dinham 2021, p. 2). Dinham focuses on addressing staff diversity within organisations, specifically on patients and clients in health and social work; while he considers neither legal nor judicial education clearly the broad argument applies. Judicial education therefore may need to consider more support around both education and around religion and belief literacy to address judicial pedagogies more fluently. Any exploration of judges’ decision-making must recognise the long tradition of socio-legal research in judicial behaviouralism, which considers trends and patterns within judgments (e.g., Spamann & Klöhn 2016), notably around criminal sentencing, in relation to judges’ backgrounds and biographies (Baetens 2020), e.g., gender, ethnicity or politics (e.g., Lim, Silveira & Snyder 2016; Schultz & Shaw 2013). One role of judicial education is to enable judges to address their own potential biases. The challenge is that on the one hand, judges are expected to be impartial, following law and precedent through a rationally bounded process with integrity, rather than based on their own ethics, politics and predilections: the rule of law. On the other hand, there is also a widespread assumption that judges should be representative of society at large, not simply because such a prestigious profession should be open to all, but also because their biographies would thereby constructively inform their decision-making. Resolving this challenge falls in part on the process of judicial education, in ensuring a shared and impartial understanding of the role without stifling the insights and experiences that a diverse judiciary would bring to the decision-making process. Studies of the ECtHR’s decisions are particularly revealing of potential influences because judges from different countries and backgrounds sit collectively (Bruinsma & de Blots 1997). One judge may agree fully or partially with another judge’s decision and reasoning, or with the overall decision but not the reasoning, or be in the minority in disagreeing with both. Research on dissenting judgments has allowed scholars to trace who disagrees with a majority judgment, and why. This was a pressing focus after former Soviet-bloc states had joined the Council and signed up to the

Judicial pedagogies  51 HCHR (see Arold 2007; Voeten 2008): would the East European judges take different positions to their West European counterparts? These studies considered potential correlations between judges’ particular decisions and their nationalities, national legal culture (e.g., common or civil law) and previous careers (e.g., as lawyer, national judge or academic). Voeten (2008) is representative in finding, through a study of dissenting judgments, that “[On] the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings” (p. 417). He also found that “there is considerable evidence for the claim that judges are policy seekers. Judges from former socialist countries appear motivated by rectifying a particular set of injustices” (p. 431). By this, he meant that “they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores” (p. 432). More specifically, Arold (2007) considered their approaches in cases on individual Articles, including Article 9 (but not Article 2, Protocol 1). For the period of her study, there was little dissent, and what there was did not show any significant trends. These studies show the value in identifying wider patterns that emerge across the Court’s judgments, treating the formal decisions as a point of investigation. Overall, this research does not suggest that there are any specific tendencies to recognise in advance: the only potential point of significance is that judges attached much weight to their own impartiality, thereby marking impartiality as a value in itself. An estranging methodology With all the above in mind, this study aims to explore how ECtHRs’s judicial pedagogies shape the Europeanisation of religions and beliefs in education. This draws on Schreiner’s (2016, p. 368) delineation of a particular type of Europeanisation, but the wider phrase “religions and beliefs in education” is used instead of “religious education” because the cases cover a wider range of issues than the just the subject, including, for instance, teachers’ religiosity (Chapter 6) or school symbols (Chapter 7). There are two research questions: What judicial pedagogies can be found in the ECtHR’s decisions? 1 2 How coherent are these judicial pedagogies? The first question is largely descriptive in identifying the breadth and diversity of judicial pedagogies at play. The second builds upon the first to consider their overall coherence more critically. Methodologically, this draws on educational policy research and sociolegal studies. Much educational policy research includes court judgments

52  Judicial pedagogies alongside legislation and other policy documents (Diem, 2017; Kuo, 2012), but the study of court judgments alone is rarer, and more often the preserve of legal scholarship. Here, the ECtHR’s judgments are taken to be qualitative textual data (Miles et al. 2019), open to abductive analysis (Timmermans & Tavory 2012). These thereby “provide an objective means by which to critique conventional and alternative positions” from a socio-legal studies perspective (Kirkham & O’Loughlin 2019, p. 338). The written decisions are invaluable naturally occurring textual data because they must contain certain elements: a summary of the facts, the arguments, the preceding judgments in national courts, and the reasons for the ECtHR’s decision, including the leading, concurring and any dissenting judgments (see Rainey et al., 2017). They are published in English and French automatically, in the language of the country before it, and important judgments may also be translated into other languages. The summaries of the underlying national courts’ judgments within a decision also reveal those courts’ judicial pedagogies. Recognising that analysis of judicial decisions in education requires “insights from various disciplines” (Superfine 2013, p. 6), an ex-ante crosscase textual analysis of formal judgments was conducted, drawing on educational and socio-legal methodologies. I specifically drew on Amsterdam and Bruner’s (2000) study of storytelling in courts, in which they adopted a “close reading” of a pair of contrasting US cases where each pair deploys a particular narrative device, as an “estranging methodology” (p. 4). As noted previously, they did not consider judges’ pedagogies; even when discussing classic cases on segregation in schools, such as Brown v. Board of Education,4 they focused on the wider topic of discrimination, with schools considered as microcosms of society, rather than on the educational challenges (Amsterdam & Bruner 2000, pp. 246–281). To answer the first question, leading cases were identified, and phrases, sentences and paragraphs were noted abductively, guided by broad insights from curriculum theory and philosophy of education, but inductively open to nuances and alternative points. From this analysis, five component elements were developed, which are the topics of the chapters that follow: philosophy of education, curriculum, teaching, learning and assessment. These are individually addressed in the following five chapters (Chapters 4–8). Each chapter opens with a short discussion of relevant educational literature and research, including, for example, curriculum theory, philosophy of education or assessment research both generically and specifically for religious education. Research from across Europe has been prioritised because ECHR will apply, and such research is therefore more likely to be contextually relevant. Then, two or three significant cases are discussed in depth, providing the opportunity to explain the background to each case and show how the decisions sit against the relevant literature and research. At times, a particular direction

Judicial pedagogies  53 taken in a case means that research on a narrower topic is introduced, for example, social cohesion through swimming lessons, in Chapter 6. The number of cases considered varies because some cases cover similar issues in the same respondent state, for example, the cases on marks for religious education in Poland, so are highly relevant but not contrasting. The chapters generally focus on different cases from each other to provide analytical depth, and are as follows:

• Chapter 4 considers Campbell and Cosans v. UK,5 on whether corporal

•

•

•

•

punishment was education, and objections to it were convictions, and Kjeldsen, Busk Madsen and Pedersen v. Denmark6 on whether providing compulsory sex education to religious pupils was indoctrination. Chapter 5 considers Folgerø and others v. Norway,7 on whether a new pluralistic religious education curriculum was still confessional, and both Zengin and Yalçin and others v. Turkey8 on the misrepresentation of minority branch of a religion in the religious education curriculum. Chapter 6 considers Dahlab, on whether and what a Muslim teacher would teach by wearing hijab in a state school, and Fernández Martínez v. Spain,9 on whether a Catholic religious education teacher who objected to Catholic doctrine could still be a teacher. Chapter 7 considers Lautsi, on what pupils would learn from a crucifix on the classroom wall, Perovy v. Russia,10 on classroom blessings, and Osmanoğlu and Kocabaş v. Switzerland11 on whether class swimming lessons had to be undertaken collectively. Chapter 8 reconsiders Zengin, on how pupils were assessed and then addresses Saniewski v. Poland12 and Grzelak v. Poland,13 on the educational effect of the absence of marks in a school report.

This is therefore a comparative case-study approach, in that the legal “cases” are methodologically the case studies. This approach allows for greater analytical depth than a purely thematic analysis, since without contextual details, a phrase or sentence could appear thin or meaningless. These cases are purposively chosen to illustrate the issues that arise before the ECtHR rather than being a representative sample. As shown for Dojan in Chapter 1, details matter. There is no intention of developing a unified pedagogical model. Indeed, differences of approach and opinion are to be expected, and the tensions, elisions or omissions will be presented, which is also why there is no attempt at identifying a chronological overview, though this could be a valuable next step in subsequent research. The analysis in the five chapters will collectively contribute to answering the first research question. The discussion chapter (Chapter 9) opens by addressing the second research question, on pedagogical coherence and will be

54  Judicial pedagogies reviewed in the light of Bruner’s (1996) models and Sfard’s (1998) metaphors, and the aim will be addressed in considering how the judicial pedagogies shape the Europeanisation of religions and beliefs in education, as examples of one aspect of the competence of the courts more generally, and in contrast with the more generic theories of Europeanisation of education. Conclusion In conclusion, this chapter has argued for the value of focusing on judges’ assumptions about teaching and learning in considering the educational competence of the courts, and, specifically, in what are termed judicial pedagogies. This term has been adapted from Bruner’s concept of folk pedagogy and has been distinguished from judicial education. Two research questions have been explained, and a methodology for analysing the ECtHR’s decisions set out. The following chapter (Chapter 4) will illustrate the issues and challenges for judges in considering some basic definitional questions about education, conviction and indoctrination. Notes 1 Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011. https://hudoc. echr.coe.int/eng?i=001-104040. 2 Hasan and Eylem Zengin v.Türkiye, no. 1448/04, 9 October 2007. https:// hudoc.echr.coe.int/eng?i=001-82580. 3 ECtHR Dahlab v. Switzerland (2001) Application no. 42393/98. https:// hudoc.echr.coe.int/eng?i=001-22643. 4 Brown v. Board of Education of Topeka, Kansas. 1954. 347 U.S. 483; Brown v. Board of Education of Topeka, Kansas. 1955. 349 U.S. 284. 5 Campbell and Cosans v. The United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 6 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509. 7 Folgerø and Others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356. 8 Mansur Yalçın and Others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-146487. 9 Fernández Martínez v. Spain 56030/07 – [GC] [2014] ECHR 615, [2014] ECHR 886. https://hudoc.echr.coe.int/eng?i=001-145068. 10 Perovy v. Russia, no. 47429/09, ECHR 2020. https://hudoc.echr.coe.int/ eng?i=001-205133. 11 Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, 10 January 2017. https://hudoc.echr.coe.int/eng?i=001-170436. 12 Saniewski v. Poland Application no. 40319/98, 26 June 2001. https://hudoc. echr.coe.int/eng?i=001-5956. 13 Grzelak v. Poland, no. 7710/02, ECtHR (Fourth Section), 22. https://hudoc. echr.coe.int/eng?i=001-99384.

Judicial pedagogies  55 References Amsterdam, A. G., & J. Bruner (2000). Minding the law. Harvard University Press. Armytage, L. (2015). Educating judges: Towards improving justice. A survey of global practice. Edited reprint with updated research. Brill. Arold, N. (2007). The legal culture of the European Court of Human Rights. Martinus Nijhoff. Baetens, F. (ed.) (2020). Identity and diversity on the international bench: Who is the judge? Oxford. DOI: 10.1093/oso/9780198870753.001.0001 Baird, J.-A., D. Andrich, T. Hopfenbeck, & G. Stobart (2017). Assessment and learning: Fields apart? Assessment in Education: Principles, Policy & Practice, 24(3), 317–350. DOI: 10.1080/0969594X.2017.1319337 Bernstein, B. (1973). Class, codes and control. Granada. Besco, L. (2018). Judicial education for sustainability. McGill Journal of Sustainable Development Law, 14(1), 1–29. Brooks, C., & E. Kitto (2021). Folk pedagogies of change: Developing an early years education development strategy for China. Early Years. DOI: 10.1080/ 09575146.2021.1935495 Bruinsma, F. J., & de Blots, M. (1997). Rules of law from Westport to Wladiwostok: Separate opinions in the European Court of Human Rights. Netherlands Quarterly of Human Rights, 15(2), 175–186. Bruner, J. (1996). Folk pedagogy. In The culture of education (pp. 44–65). Harvard University Press. DOI: 10.2307/j.ctv136c601.5 Council of Europe. 2016. Competences for democratic culture - Living together as equals in culturally diverse democratic societies. Strasbourg: Council of Europe. Council of Europe. 2020. Common European framework of reference for languages: Learning, teaching, assessment – companion volume. Council of Europe. Cumper, P. (2011). Religious education in Europe in the twenty-first century. In M. Hunter-Henin (ed.), Law, religious freedoms and education in Europe (pp. 207– 227). Ashgate. Cumper, P., & Lewis, T. (2018). Empathy and human rights: The case of religious dress. Human Rights Law Review, 18(1), 61–87. DOI: 10.1093/hrlr/ngx046 Dawson, B., U. Schultz, & G. Shaw (2014). Gender and judicial education. International Journal of the Legal Profession, 21(3), 255–257. DOI: 10.1080/09695958. 2015.1066944 Diem, S. (2017). A critical policy analysis of the politics, design, and implementation of student assignment policies. In M. Young & S. Diem (eds.), Critical approaches to education policy analysis (pp. 43–64). Springer. DOI: 10.1007/978-3-31939643-9_3 Dinham, A. (2021). Religion and belief literacy: Reconnecting a chain of learning. Policy Press. Dixon, H. (2020). What judges and lawyers should understand about artificial intelligence technology. Judges’ Journal, 59(1), 36–39. Domitrovich, S. (2017). Judges as gatekeepers of science and the law: The importance of judicial education. Judges’ Journal, 56(4), 1–1.

56  Judicial pedagogies Drumm, L. (2019). Folk pedagogies and pseudo-theories: How lecturers rationalise their digital teaching. Research in Learning Technology, 27. DOI: 10.25304/rlt. v27.2094 European Court of Human Rights (2022a). Guide on Article 2 of Protocol no. 1 to the European convention on human rights: Right to education. https://echr.coe. int/documents/guide_art_2_protocol_1_eng.pdf European Court of Human Rights (2022b). Guide on Article 9 of the European convention on human rights: Freedom of thought, conscience and religion. https:// echr.coe.int/Documents/Guide_Art_9_ENG.pdf Fancourt, N. (2022). The educational competence of the European Court of Human Rights: Judicial pedagogies of religious symbols in classrooms. Oxford Review of Education, 48(2), 131–147. DOI: 10.1080/03054985.2021.1933406 Freckelton, I. (1997). Judicial pedagogy and expert evidence on victims’ responses to trauma: Jv The Queen (1994) 75 A Crim R 522 F v The Queen (1995) 83 A Crim R 502. Psychiatry, Psychology and Law, 4(1), 79–86. DOI: 10.1080/ 13218719709524899 Freire, P. (1997). Pedagogy of the oppressed. Continuum. Galanter, M. (1983). The radiating effects of courts. In K. Boyum & L. Mather (eds.), Empirical theories about courts (pp. 117–142). Longman. Heise, M. (2002). The courts, education policy, and unintended consequences. Cornell Journal of Law & Public Policy, 11, 633–662. Hendek, A., & N. Fancourt (2021). The effects of judgments by the European Court of Human Rights on religious education in England and Turkey. Religion & Education, 48(4), 436–457. DOI: 10.1080/15507394.2021.1961658 Ilic, M., & Z. Bojovic (2016). Teachers’ folk pedagogies. Journal of Arts and Humanities, 5(9), 41–52. DOI: 10.18533/journal.v5i9.987 Jukier, R. (2016). Quebec procedural law as a microcosm of mixity: Implications for legal pedagogy, judicial decision-making, and law reform. Loyola Law Review, 62(3), 691. Kirkham, R., & O’Loughlin, E. (2019). A content analysis of judicial decision-­ making. In N. Creutzfeldt, M. Mason, & K. McConnachie (eds.), Routledge handbook of socio-legal theory and methods (pp. 329–342). Routledge. Kuo, N.-C. (2012). Achieving education for all – Together. In M. Tatto (ed.), Learning and doing policy analysis in education (pp. 93–115). SensePublishers. DOI: 10.1007/978-94-6091-933-6_5 Lim, C. S., B. S. Silveira, & J. M. Snyder (2016). Do judges’ characteristics matter? Ethnicity, gender, and partisanship in Texas State trial courts. American Law and Economics Review, 18(2), 302–357. Mayoral, J., U. Jaremba, & T. Nowak (2014). Creating EU law judges: The role of generational differences, legal education and judicial career paths in national judges’ assessment regarding EU law knowledge. Journal of European Public Policy, 21(8), 1120–1141. DOI: 10.1080/13501763.2014.915871 McCann, M. (1992). Reform litigation on trial. Law & Social Inquiry, 17(4), 715– 743. DOI: 10.1111/j.1747-4469.1992.tb00637.x Miles, M., Huberman, A., & Saldaña, J. (2019). Qualitative data analysis: A methods sourcebook (4th ed.). Sage.

Judicial pedagogies  57 Olson, D. R., & J. S. Bruner (1996). Folk psychology and folk pedagogy. In D. R. Olson & N. Torrance (eds.), The handbook of education and human development: New models of learning, teaching and schooling (pp. 9–27). Blackwell. Perry-Hazan, L. (2015). Court-led educational reforms in political third rails: Lessons from the litigation over ultra-religious Jewish schools in Israel. Journal of Education Policy, 30(5), 713–746. DOi: 10.1080/02680939.2014.987829 Piana, D., P. Langbroek, T. Berkmanas, O. Hammerslev, & O. Pacurari (eds.) (2013). Legal education and judicial training in Europe: The menu for justice project report. Eleven International Publishing. Rainey, B., Wicks, E., & Ovey, C. (2017). Jacobs, White and Ovey: The European convention on human rights (7th ed.). Oxford University Press. Rosenberg, G. (1991). The hollow hope: Can courts bring about social change? University of Chicago Press. Runkle, D. (2017). Neuroscience in the courtroom and the classroom. Judges’ Journal, 56(4), 27–32. Schreiner, P. (2016). Europäisierung religiöser Bildung? Religionspädagogik und internationale Standardisierungsprozesse. [Europeanisation of religious formation? Religious education and international standardisation processes] Zeitschrift für Pädagogik und Theologie, 68(3), 367–380. Schultz, U., & Shaw, G. (eds.). (2013). Gender and judging. Hart Publishing. Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Spamann, H., & L. Klöhn (2016). Justice is less blind, and less legalistic, than we thought: Evidence from an experiment with real judges. The Journal of Legal Studies, 45(2), 255–280. Stahl, G. (2020). Critiquing the corporeal curriculum: Body pedagogies in ‘no excuses’ charter schools. Journal of Youth Studies, 23(10), 1330–1346. DOI: 10.1080/13676261.2019.1671582 Superfine, B. M. (2013). Equality in education law and policy, 1954–2010. Cambridge University Press. Timmermans, S., & I. Tavory (2012). Theory construction in qualitative research: From grounded theory to abductive analysis. Sociological Theory, 30(3), 167–186. DOI: 10.1177/0735275112457914 Voeten, E. (2008). The Impartiality of international judges: Evidence from the European Court of Human Rights. American Political Science Review, 102(4), 417–433. DOI: 10.1017/S0003055408080398 Wundt, W. (1916). Elements of folk psychology. Macmillan.

4 Judicial definitions of education, convictions and indoctrination

This chapter considers some fundamental claims that the ECtHR has made about the role and purpose of education, about the meaning of belief or conviction, and about indoctrination. These terms are contained within ECHR and so require definitions. Cases that come before the ECtHR, notably under A2P1, concern the right to education, and inevitably raise questions about the aims and purposes of education, and indeed about what kinds of activities or processes ‘education’ would include. These terms however must have limits too: a right to education, may or may not include a right to higher education, for example. If an appellant claims that a particular activity conducted by the educational authorities is in breach of A2P1, it needs to be shown that this activity is to be classed as education: parents cannot obviously bring a claim against their child’s weekend sports club. The Court must make broad pronouncements about the nature, aims or purposes of education and/or teaching, to establish what is included or excluded from its remit. Bruner (1996) did not explicitly identify folk philosophies of education, but they are implicitly part of folk pedagogies. This chapter therefore opens with a discussion of different philosophies of education and of its counterpart, indoctrination, and then reviews two cases: Campbell and Cosans v. UK1 from 1977, which considered whether corporal punishment was part of education or simply an ancillary matter; Kjeldsen et al. v. Denmark,2 from 1976, concerning religious objections to sex education. Philosophies of education Within educational theory, there are two broad considerations when considering the definition of education, and its aims and purposes – leaving aside the question of whether and how these latter two are achievable or distinguishable (e.g., Standish 1999). The first is the division between attention to the individual and to society. This difference in perspective is likely to feature in ECtHR litigation because the cases usually represent an DOI: 10.4324/9781003393276-4

Judicial definitions of education  59 individual’s or family’s grievance against a state educational system, so the cases address how societal assumptions and arrangements impact the individual pupil or parent. Societies plan for social benefits; individuals may be more focused on their own or their children’s experiences. For some, there is a sharp divide, and Russell (1932/1977) wrote: There is one temperamental cleavage which goes deeper than any of the other controversies, and that is the cleavage between those who consider education primarily in relation to the individual psyche, and those who consider it in relation to the community. (p. 9) Russell also frames this as a contrasting focus between the individual and the citizen: education can be thought of in relation to an isolated thinking mind, or one can think of it in relation to communal cooperative life. This distinction echoes Sfard’s (1998) comparison of the two metaphors of learning, as acquisition and participation, discussed in Chapter 3; consideration of the individual mind easily leads to the acquisition metaphor, whereas consideration of community quasi-automatically implies the participation metaphor. The former view might include the goals of autonomy and wellbeing, and what is termed a liberal education as inculcation into disciplines, and is well represented by Peters (1966). He contended that education must be driven by what is worthwhile, and a good in itself, rather than simply because it allows one to gain access to other goods, such as employment, or for other instrumental benefits to society. Educators should “get clear about and focus attention on what is worth while achieving. It is not to ask for the production of ends extrinsic to education which might explain their activities as educators” (Peters 1966, p. 28). This led him to view education as initiation into different disciplines, since “mastery of the basic skills opens the gates to a vast inheritance by those versed in more specific modes of thought and awareness such as science, history, mathematics, religion and aesthetic awareness” (p. 50). From this starting point, an argument for the benefit to society of such an education more generally can be developed, but it is important to note its direction of travel. By contrast, the latter view starts with attention to the requirements of social living in order to consider what should be provided. This can be seen paradigmatically in Dewey, who started out from the needs of the community to sustain itself: Society exists through a process of transmission…This transmission occurs by means of communication of habits of doing, thinking, and feeling from the older to the younger. Without this communication of ideals, hopes, expectations, standards, opinions, from those members of society

60  Judicial definitions of education who are passing out of the group life to those who are coming into it, social life could not survive. (Dewey 1916/1997, p. 3) On this view, education, and especially schooling, are intrinsically sustained communal processes, and the purpose of education for an individual is primarily grounded in the demands of social life. Within this definition, transmission of habits of thinking may well produce an education similar to that envisaged by Peters, but the argument is constructed differently. Of course, Dewey’s version of social living may be too accepting of traditional existing habits and traditions; education may become a site of social change, in addressing social inequalities, notably around gender, ethnicity or socio-­ economic status. The latter was most famously articulated by Paulo Freire (2000/1972) in “Pedagogy of the Oppressed”, in which education would help resolve class differences and hostilities as an alternative to, but a form of, revolution. These arguments are not new. For example, Mary Wollstonecraft (1995), the 18th-century feminist philosopher, framed the educational inequality of women as a national issue, and her agenda for changes in girls’ education is as much about the nature and structure of schooling for all to achieve social equality. Clearly, these issues remain – and remain open for reappraisal (e.g., Martin 2011). This social view of education can also be found amongst legal scholars, and thus Zucca (2012) argues that “education is the first building block to promote a genuinely plural and tolerant society” (p. 142). The second consideration relates to the appropriate kinds of knowledge or understanding that are of value. This consideration clearly relates to the first, in that Peters prioritised disciplinary understanding whereas Dewey identifies “the habits of doing, thinking and feeling” (p. 3), which might extend more widely. Another important potential aim of education is in the child’s moral formation, and the domain of moral or ethics education. Moral education is often focused on the individual and their moral or character formation, though many argue that the nature of ethical demands is such that they largely relate to social relations (Hand 2018). Indeed, much moral education is conducted through the social patterns of school life, including disciplinary procedures, rather than through the formal curriculum – even if it may also feature there. A third aim would envisage education as preparation for the world of work and civil life, to ensure that students are vocationally, socially and ethically prepared for life after schooling: “Book learning is all very well but it doesn’t exactly butter the parsnips” (Marples 2010, p. 39). Peters was sceptical of this as an aim in itself, but one can frame disciplinary knowledge as being suitable for different forms of work, typically in ongoing debates about the relative merits of the sciences versus humanities. As noted previously, much of the European educational space prioritises a vision of skills for a skilled, mobile workforce across Europe, rather than

Judicial definitions of education  61 education’s value to individuals. Interlaced across all these three considerations lie questions about the status of religious education, as the acquisition of a valuable form of knowledge, the basis for moral education and/or a vital life skill (e.g., Hand 2006). These considerations of what education is particularly matter in the light of their potential conflict with individuals’ religious or philosophical beliefs or convictions, which must be defined in the judicial context. While this is not a specifically educational question, it matters when considering these issues, since their educational import gives rise to litigation. There is a distinction to be drawn between a mere preference and a conviction. I might want my child to learn Latin or Computer Science (or both), but these are hardly convictions, and certainly not ones that would be legally actionable. By contrast, a pacifist “conviction” might mean that I objected to my child attending a school’s Remembrance event or learning certain aspects of history; these would seem to merit more consideration. Lastly, the question of indoctrination arises. Indeed, Lewin (2022) argues that “to define indoctrination, one cannot avoid defining education; or perhaps it is better to acknowledge that any lack of clarity concerning one mirrors the lack of clarity concerning the other” (p. 614). Indoctrination has a pejorative connotation, and in the light of Nazi and Communist approaches to education has been a particularly sensitive issue throughout the Court’s existence, in identifying what is inappropriate in an unquestioning and unquestionable Fascist or Marxist pedagogy (Snook 1972). It is also deployed in ongoing debates about the place of religions and secularities in education (Copley 2005; Lewin 2022). As can be seen in Dojan, the parents considered that the school was acting inappropriately by delivering sex education to which they were opposed on religious grounds. While they accepted that schools had this role, they objected on moral grounds to what the state considered to be appropriate knowledge and considered that this knowledge was detrimental to their children, arguing that “compulsory attendance at the…events and lessons, which had exclusively promoted a liberal view of sexuality, had amounted to indoctrination of their children” (Paragraph 2, emphasis added). Moreover, states can also appeal to the concept of indoctrination by arguing that this is essentially what the convention prohibits, and then showing that their laws and policies are far from this threshold; thus, in Folgerø v. Norway,3 the Norwegian Government argued that a particular statutory clause “did not authorise preaching or indoctrination of any kind in Norwegian schools” (Paragraph 75). This raises some philosophical questions about what is meant by indoctrination. Callan and Arena (2009) describe it here: When charges of indoctrination are made, the imputation of moral wrongdoing has to do with a systematic distortion of some kind in the teacher’s presentation of subject matter—a distortion that elicits, or

62  Judicial definitions of education could reasonably be expected to elicit, a corresponding distortion in the way students understand the subject matter. (p. 105) Most commentators identify two broad elements: those relating to the teacher and teaching, such as what they teach and how they teach it; those relating to the effects of these on the learners in distorting their understanding. Some argue for this second element alone (e.g., Wareham 2019). For the teaching aspect, more is required than the teacher simply being wrong or erroneous; this would be unfortunate or unprofessional, but not indoctrination. Method and intention are also at stake. For the learning aspect, students must accept this version of the matter, or be likely to. There are clearly difficulties in defining distortion in subjects with differing interpretations, and attention here is often placed on the cultivation of open-mindedness (e.g., Hare 1979), or evaluation of beliefs. There is also recognition that some aspects of teaching require pupils simply to accept facts or information, particularly in young children, without this thereby becoming indoctrination (Peters 1966, p. 261). Beyond the courts’ work in describing or circumscribing indoctrination, there is a further issue, in that the claim by parents that the state is indoctrinating their children is with reference to their own personal beliefs. In Dojan, the plaintiff’s argument was not that they were right in their view of sex education, but that their children’s view, following theirs, had been misrepresented or distorted by the school. The cases Central to the court’s work is the intersection of assumptions about education, convictions and indoctrination. Two cases have become the bedrock of subsequent decisions on A2P1, and their analysis will enable these foundational concepts to be investigated: Campbell and Cosans, from 1977, on school beatings, and Kjeldsen, on opting out of sex education on religious grounds, the year before. Defining education: Campbell and Cosans v. UK

A definition of education was required in Campbell and Cosans (see Marshall 2010). The two appellants were initially unconnected; Gordon Campbell was about to start at St Matthew’s Primary School in Bishopbriggs, in Strathclyde, and his mother wanted an assurance that corporal punishment would not be used on him. Jeffery Cosans was a 15-year-old pupil at Beath Senior High School in Fife who had been caught taking a shortcut through the local cemetery, for which a beating on the hand with a tawse (a leather strap) was the prescribed punishment. He refused to accept this and was

Judicial definitions of education  63 suspended; his parents objected to the suspension and demanded his readmission, taking the matter to the courts. At the time, many thought that the school was right, and indeed a local Glasgow-based newspaper, the Evening Times, opined that “The case might seem like a storm in a teacup. But there’s an important principle. The headmaster did the right thing – and sets a good example” (Evening Times, undated, in MacLeod 2022). Matters in both cases then proceeded through the courts and were combined into one joint action in the ECtHR. The two appellants (their respective mothers) argued both that their sons’ treatment was tantamount to torture (under Article 3), which was rejected, and that this was a denial of a right to an education because corporal punishment was against their convictions, under A2P1. On the latter point, the UK Government argued that the functions relating to the internal administration of a school, such as discipline, were ancillary and not the functions in relation to ‘education’ and to ‘teaching’ within the meaning of [A2P1], these terms denoting the provision of facilities and the imparting of information, respectively (Paragraph 33) and therefore there was no case to answer. The case was heard by seven judges: Rolv Ryssdahl (the President of the Court, from Norway), John Cremona (Malta), Thór Vilhjálmsson (Iceland), Léon Liesch (Luxembourg), Louis-Edmond Pettiti (France), Vincent Evans (the UK, who partially dissented) and Ronald MacDonald (Canada, who uniquely sat as a nonEuropean representative). As noted above, the UK Government had argued that education was solely the imparting of information, echoing Peters’ argument, and so discipline was an ancillary activity outside of the Article’s remit. In Sfard’s (1998) terms, education was purely about acquisition and not about participation in a community. The Court rejected this position: The education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development. (Paragraph 33) These two contrasting definitions of education and teaching raise several issues. First, on the definition of education, this is placed as a collective social enterprise of transmission, resonating with Dewey’s account of education, and the notion of participation. Education is here not specifically about the individual per se. By contrast, teaching is about transmission, still suggesting a social process and treated as tantamount to instruction, but

64  Judicial definitions of education this is tempered by the addition of the phrase “intellectual development”, which could be considered more individualistic. Second, it is unclear what the relationship is between “knowledge” as the focus of teaching, and “beliefs, culture and other values” as the focus of education. Philosophically, knowledge is often considered to be a subset of belief – as justified true belief. However, in common speech knowledge and beliefs are distinguished, so that beliefs are either those ideas or thoughts that are untrue, or for which one does not have clear justification, or more strikingly, which one holds very strongly, even in the face of a lack of justification. On these grounds, it is unclear if the Court considered teaching to be an aspect of education or separate from it. The phrase “in particular” suggests that the Court considered it to be a subset, though then it is uncertain to which of the three elements on the first section it primarily attaches – belief, culture or other values. This uncertainty is compounded using “other” before “values”, since within these three, it is vague whether or how belief and/or culture consists of or contains values themselves, or what “other” values might be that are not contained within the first two terms. Having given its own definitions of education and teaching, the ECtHR then considered the place of discipline within them, also addressing the government’s argument that they fell outside the scope of A2P1. The use of corporal punishment may, in a sense, be said to belong to the internal administration of the school, but at the same time it is, when used, an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils. (Paragraph 33) The Court’s decision here sets up slightly different aims for schooling from those it had set out just before. First, it identified the process as one of “development and moulding”: development had been included in the initial description of teaching, but moulding is new, and potentially implies a stronger more engaged process than development. Development might be a naturally occurring process of growth or maturing, albeit one that can best take place in school; there is a wide range of theories of intellectual or other forms of development, notably stemming from Piaget (1926), such as Kohlberg’s (1984) theory of moral development. The notion of moulding suggests greater involvement by others, i.e., teachers, in that moulded objects would not otherwise have their particular form: plants develop; clay is moulded. Second, it applies these to “the character and mental powers of its pupils”. The mention of character education is new here; it potentially draws on the notion of values from earlier, though there are arguably differences between them, and also to virtue, moral or ethics education (see Althof &

Judicial definitions of education  65 Berkowitz 2006; McGrath, Han, Brown & Meindl 2022). One could discuss whether character develops or is moulded, and indeed what kinds of character dispositions should be valued (Morton 2014). The mention of pupils’ “mental powers” echoes the earlier reference to “intellectual development”, which expressly referred to development rather than moulding; indeed, the moulding of mental powers sounds potentially invasive and raises the spectre of indoctrination. In short, the Court offers overall a wideranging view of education and teaching, starting with the social but not limited to it, that ranges across various intellectual traits; however, it is not completely coherent in setting out how these elements interconnect. The next stage of the argument was to consider how corporal punishment and discipline more widely fit within this vision. This was especially necessary because the government had raised another objection, which was that discipline was not one of the “‘functions’ assumed by central or local government” (Paragraph 34) because it was left to the individual teacher rather than being part of the overall planning and provision of services that government would conduct. The ECtHR held that Discipline is an integral, even indispensable, part of any educational system, with the result that the functions assumed by the State in Scotland must be taken to extend to the question of discipline in general, even if not in its everyday maintenance. (Paragraph 34) The judgment however does not go further to articulate why or how discipline might fit within the scope of education or teaching it had previously outlined. The Court did not feel it was required to do so because under existing case law (Kjeldsen, see below), A2P1 was to be treated as applying to “‘each and every’ function that…States undertake in the sphere of education” (Paragraph 33). However, speculatively, one might argue that school discipline, including corporal punishment, is an aspect of one of other of these functions. Indeed, Peters explicitly connects it with intellectual learning: [E]ven the most the most inspiring, stimulating, and competent teachers sometimes come across pupils who will not submit to the discipline of the learning situation…On occasions such as these authority on its own may be ineffective; it may have to be backed by power in order to maintain or bring about those minimum conditions of order without which progress in learning is not possible. This naturally raises the question of punishment. (Peters 1966, p. 266) This argument makes little appeal to the school as community but only to the requirements of intellectual progress of resistant individuals. Discipline

66  Judicial definitions of education is for the benefit of the learner’s acquisition of knowledge, so they should “submit” to it, and if not, “power” is needed. Others, contrastingly, link discipline with the school as a moral community, in a Deweyan move. Here are Scribner and Warnick (2021), analysing disciplinary approaches and techniques in US schools: We also see punishment, when properly conceived, as unavoidably educative. The moral community of schools is necessarily built around educational concerns. The purpose of the expressive function in schools is to provide a framework for moral education and the civic, liberal, and even vocational purposes associated with it. (p. 118) This offers more clearly a participative position. While this kind of argument was not explored in the case, it articulates a reasonable alternative position to that which the Court adopted. Defining convictions: Campbell and Cosans

Having resolved the question of what counts as education or teaching for the purposes of A2P1, there was another question for the judges to consider, but on which they did not agree: whether the parents’ views on corporal punishment constituted “religious or philosophical convictions” under A2P1. If they did not, there could be no violation of its second sentence. Parents will have their own views on a range of issues about schooling, so the court had to decide on the criteria for deciding when these views constituted legally actionable convictions. Indeed, the UK Government argued “that the expression did not extend to opinions on internal school administration, such as discipline” and pointed out that otherwise “objections to other methods of discipline, or simply to discipline in general” (Paragraph 36) would be included. The court therefore considered the meaning of “convictions” and “philosophical” in this context. This required some consideration since earlier, in the “Belgian linguistic” case,4 parents’ linguistic preferences for their child’s education, and specifically wanting French-medium schooling when living in Flemish-speaking communities, had not been considered to be convictions. For the majority in Campbell and Cosans, convictions were “more akin to the term ‘beliefs’…and denoted views that attain a certain level of cogency, seriousness, cohesion and importance” (Paragraph 36). The term “philosophical” was more problematic, since it could range from “a fully fledged system of thought” to “views on more or less trivial matters” (Paragraph 36). Taking the phrase holistically, the majority decision by six judges determined it to mean “such convictions as are worthy of respect in a

Judicial definitions of education  67 ‘democratic society’…and are not incompatible with human dignity” (Paragraph 36). Strikingly here, the test is itself about the value of convictions within a democratic society, echoing some of their remarks about the purposes of education. Applying this test, they considered that views on corporal punishment went to the integrity of the person and the exclusion of distress, and therefore could be considered philosophical convictions under the Article. On this basis, the appeal was upheld; in fact, the Scottish government was in the process of removing corporal punishment from schools, so the decision simply hastened its demise. However, one judge took a different, narrower, view on this issue: Vincent Evans, from the UK. He felt that the second part of A2P1: …is concerned with the content of information and knowledge imparted to the child through education and teaching and the manner of imparting such knowledge and information and that the views of parents on such matters as the use of corporal punishment are…outside the intended scope of the provision. (Dissenting Opinion, Paragraph 4) For him, education – at least within this Article – had a more restricted meaning, more in line with Peters’ broad position on the importance of liberal education. He went on to consider the consequences of adopting an extensive definition, holding that it would also inevitably have to include: All manner of other strongly held views regarding the way in which schools are organised and administered. There may be very strongly held beliefs on such matters as the segregation of the sexes, the streaming of pupils according to ability or the existence of independent schools, which could be claimed to have a religious or philosophical basis. It would surely create problems which were never intended by the authors of the Protocol if different and inevitably conflicting views had to be accommodated within the State’s educational system. (Dissenting Opinion, Paragraph 5) He explored this in more detail as the UK had only signed the protocol subject to some reservations, including the provision of efficient instruction and training, and avoidance of unreasonable costs. This led him to outline three options: separate schools for those who object to corporal punishment; separate classes within the same school; different treatment for different pupils in the same class, depending on their parents’ views. The first was considered far too expensive. The second was expensive, and incompatible with “efficient instruction and training”, though it is unclear why: given that academic streaming within schools was commonplace, the system could

68  Judicial definitions of education switch to a different form of steaming. The third, he considered in more detail, providing a further view of education: [A]ny system of discipline in a school should be seen to be fair and capable of being fairly administered, otherwise a sense of injustice will be generated with harmful consequences both for the upbringing of the individual and for harmonious relations within the group. (Dissenting Opinion, Paragraph 7) Striking here is the notion that a sense of injustice is educationally harmful to pupils. School discipline has a role in pupils’ experience and understanding of justice, and thus the connection between discipline and education is finally made explicit in the judgment. As an aside, it now seems extraordinary that he was concerned about this sense of injustice rather than about how pupils might feel about being subjected to (or threatened with) corporal punishment. On his view, better that all pupils should be subject to corporal punishment – even if some pupils’ parents opposed it – than that a sense of injustice should arise. Moreover, while he also points to harmonious classroom relations, there is little sense of the school as a moral community in itself, as Scribner and Warnick (2021) describe it: one might have argued that it was important educationally for punishment to be seen as fair across the school, but Evans stops short of this. Defining indoctrination: Kjeldsen, Busk Madsen and Pedersen v. Denmark

The previous discussions of education and convictions have explored how judges have considered two key terms within the Convention. However, another aspect of their role has been in identifying what should be avoided, and central to this is the notion of indoctrination. Indoctrination is not expressly prohibited by the ECHR, but the Court has often identified this as being what is prohibited, and it is often raised in appellants’ claims or defendants’ responses, either in their national courts or before the ECtHR; for example, in Papageorgiou and Others v. Greece, the Greek Government argued that there was “no question of ‘prosyletism’ or ‘indoctrination’” (Paragraph 63). It is also raised in arguments about religious education, either by those arguing that it is or can be indoctrinatory (e.g., Alberts 2019; White 1970) or those arguing that nonreligious or secular positions are themselves indoctrinatory (e.g., Copley 2005). The key case is Kjeldsen, Busk Madsen and Pedersen v. Denmark, from 1976, and is, like Dojan, about whether compulsory sex education was in breach of A2P1. The subject had been recently introduced, in 1970, alongside road safety and – somewhat incongruously perhaps – library organisation (Paragraph 22). The three families appealing were from various regions in Denmark, like Campbell and Cosans (but unlike Dojan v. Germany,5 in which

Judicial definitions of education  69 the appellants knew each other well). They all sought to have their children exempted from sex education, but this was denied as the subject was compulsory in state schools, though a particular nuance was that it was not part of the compulsory curriculum in private schools. The case is highly significant in setting out the broad principles for the interpretation of A2P1, notably how its two sentences inter-relate, and how it fits within the Convention more broadly. It has underpinned subsequent case law, both on sex education and on religious education. Indeed, as with Campbell and Cosans, the consideration of wider questions prompted more general deliberation by the Court. Indoctrination is mentioned in the judgment thrice; twice in the majority decision, and once in the dissenting judgment. The judges were: Giorgio Balladore-Pallieri (Italy); Alfred Verdross, who dissented (Austria); Mehmet Zekia (Cyprus); Helga Pedersen (Denmark); Sture Petrén (Sweden); Rolv Ryssdahl (Norway, and who went on to be president of the court in Campbell and Cosans); Dimitris Evrigenis (Greece). The first point concerns the broad principles to apply to the second sentence of A2P1, and the Court considered that it Implies…that the State, in fulfilling the functions assumed to it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded. (Paragraph 53) The use of “conveyed” places the discussion within an acquisition model but it is unclear what the relationship is between the first and second sentences. They could be describing the same conditions and mean that a curriculum that is not conveyed appropriately would automatically be indoctrinatory. Alternatively, there might be a basic threshold for inappropriate conveyance of the curriculum, but which has not yet met harsher criteria for indoctrination, akin to the distinction between actual and grievous bodily harm or negligence and gross negligence. The first sentence is striking as a set of criteria for avoiding indoctrination, in that it focuses on the process of teaching alone and not its effects, and moreover, it only mentions how the curriculum is conveyed, rather than any criteria for its contents. For example, the curriculum does not have to be objective, it only has to be conveyed objectively. This focus was reinforced when the Court considered whether the Danish government had met these standards: The instruction on the subject given in State schools is aimed less at instilling knowledge that they do not have or cannot acquire by other means than by giving them such knowledge more correctly, precisely,

70  Judicial definitions of education objectively and scientifically. The instruction…is principally intended to give pupils better information. (Paragraph 54) The first sentence here focuses on the process of “giving” knowledge, though only the term “objectively” is repeated from the previous paragraph. This process is also to be conducted correctly, precisely and scientifically, whereas previously it was instead to be conducted in a critical and pluralistic manner. This change in emphasis may be because the first paragraph describes the broad parameters of the whole curriculum, whereas the second paragraph is focused on sex education, for which a critical or pluralistic approach is harder to envisage. The opening of the second paragraph is also noteworthy since it follows on from the preceding sentence which identified students’ other sources of knowledge than school: The Danish legislator…clearly took as his starting point the known fact that in Denmark children nowadays discover without difficulty and from several quarters the information that interests them on sexual life. (Paragraph 54) The reason for needing better information was linked to issues of sexual health, “to warn them against phenomena it views as disturbing, for example, the excessive frequency of births out of wedlock, induced abortions and venereal diseases” (Paragraph 54). The Court recognised that ethical issues were at stake: “what are involved are matters where appraisals of fact easily lead on to value-judgements” but considered that these were “very general in character and do not entail overstepping the bounds of…public interest” (Paragraph 54). It then arrived at its next conclusion regarding indoctrination, holding that the subject in no way amounts to an attempt at indoctrination aimed at advocating a specific kind of sexual behaviour. It does not make a point of exalting sex or inciting pupils to indulge precociously in practices that are dangerous for their stability, health or future. (Paragraph 54) This test is slightly different to the initial formulation, of “an objective, critical and pluralistic manner” (Paragraph 53), in that it shifts from the process of teaching to an outcomes-based test. Furthermore, these outcomes (danger to stability, health or future) are different to those in most educational literature, which tend to focus on epistemic states (e.g., Wareham 2019). The test proposed here would lead to a radical reappraisal of what was or was not indoctrination so that an overzealous physical education teacher

Judicial definitions of education  71 who encouraged very young pupils to undertake unsuitable weight training could be guilty of indoctrination (danger to health), but a committed Marxist only teaching a Marxist view of history would not – unless it could be said to affect the pupils’ futures. The Court continued with what mattered as a legal question: “It does not affect the right of the parents to enlighten and advise their children…or to guide their children on a path in line with the parents’ own religious or philosophical convictions” (Paragraph 54). This seems to imply a different criterion, in that if the parents’ views were not forbidden or condemned, so that pupils would experience both the teaching of both parents and school, then there is neither a breach of A2P1, nor indoctrination. The third mention of indoctrination appears later, differently, in the Separate Opinion of Judge Verdross. He disagreed with the majority, holding that the parents should be entitled to opt their children out of sex education, under A2P1. He describes the issue as follows: The question thus arises whether the parents…may…oppose compulsory sex education in a State school even if, as in the present circumstances, such education does not constitute an attempt at indoctrination. (Separate Opinion) So, for Verdoss, the threshold for indoctrination is higher than that for A2P1, since while the education provided was not indoctrination, parents might still have the right to object to it: this distinction was unclear in the majority judgment. Unfortunately, he does not give his reasons for holding this distinction, nor what might constitute the higher bar for indoctrination. It is worth noting that he had worked as a law lecturer in Vienna during the Nazi occupation, so had almost certainly witnessed political indoctrination first-hand and was potentially drawing on his own experiences (Anon 1995); for him, whatever the rights and wrongs of the case, this was in no way indoctrination. His next argument, for supporting the parents, was because, for him, first, it was impossible to separate out the biological from the ethical dimensions of sex education, and “even objective information can violate the Christian convictions of the parents”. Second, once the parents had made their objections known they had to be accepted on their own terms, so the court could not decide that some other criterion applied, and he compared this to conscientious objectors to military service: “[t]hese bodies have to respect the ideology of the persons concerned once such an ideology has been clearly made out” (Separate Opinion). Particularly striking here is the connection with the term “ideology”, but which is usually used in discussions of what is being imposed through indoctrination, and whether this must be an ideology in some sense (see White 1970). Here, it is used respectfully as a shorthand for the parents’ convictions, or rather for the

72  Judicial definitions of education wider frame of beliefs within which the parents’ views sit since he also points out that the parents’ argument is “not altogether precise” but should still be properly treated. Thus, indoctrination is never fully defined in this case, neither in the majority decision nor in the dissenting judgment. It is swiftly condemned, and both the majority and the dissenting judge consider that it does not apply to the facts of the case, but it is unclear precisely why not. A particular challenge is that indoctrination is not expressly prohibited under human rights obligations and A2P1 is only invoked in relation to parents’ convictions, so that the term only arises with respect to the teaching of their children. This raises the question as to whether it can be indoctrination for only some pupils in a class (or just one), and its inverse, whether it cannot be indoctrination if the material presented accords with parents’ and pupils’ convictions. This would mean focusing on the outcome criterion of indoctrination, though in an unusual way since most discussion assumes that ­students know nothing about the subject matter (e.g., Lewin 2022, Wareham 2019), and they certainly do not consider the inter-relationship between indoctrination of children as against their parents’ convictions. Conclusion This exploration of the concepts of education, conviction and indoctrination through two cases has illustrated the level of educational theorising required of judges to resolve cases under A2P1. Education is addressed both at the individual level, and indeed human rights can only operate in this way, as well as a wider social concern, and an acquisition model dominates the judgments. Education is envisaged as both epistemic and ethical, and it is said to include not simply the imparting of information but does include wider processes of schooling, notably discipline, though only for the individual’s benefit, not the community. These elements echo wider debates within the philosophy of education. However, the connections between these elements over and beyond presenting them at certain moments are not spelt out. The meaning of convictions, with implications for this right, has a wide definition, and while this might present challenges it itself, is less ambiguous than education. The definition of indoctrination is unclear, and while there is no need for the purposes of interpretation to have one it supports Lewin’s (2022) argument that this is because it mirrors the definition of education, so that without a clear definition of education, it will be difficult to define indoctrination. This is also compounded by the way that convictions must be taken into consideration under human rights law. So far, this discussion has focused on the ECtHR’s treatment of abstract terms, and in the next chapter (Chapter 5), we turn our attention to the details of curriculum planning and design.

Judicial definitions of education  73 Notes 1 Campbell and Cosans v. the United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 2 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509. 3 Folgerø and Others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356. 4 Case “relating to certain aspects of the laws on the use of languages in education in Belgium”(merits), 23 July 1968, Series A no. 6. https://hudoc.echr.coe.int/ eng?i=001-57525. 5 Dojan and Others v. Germany (dec.), nos. 319/08 and 4 others, 13 September 2011. https://hudoc.echr.coe.int/eng?i=001-106382.

References Alberts, W. (2019). Religious education as small ‘i’ indoctrination: How European countries struggle with a secular approach to religion in schools. CEPS Journal, 9(4), 53–72. Althof, W., & M. W. Berkowitz (2006). Moral education and character education: Their relationship and roles in citizenship education, Journal of Moral Education, 35(40), 495–518. DOI: 10.1080/03057240601012204 Anon (1995). Alfred Verdross (1890-1980) biographical note with bibliography. European Journal of International Law, 6(1), 103–115. Bruner, J. (1996). Folk pedagogy. In The culture of education (pp. 44–65). Harvard University Press. DOI: 10.2307/j.ctv136c601.5 Callan, E., & D. Arena (2009). Indoctrination. In H. Siegel (ed.), The Oxford handbook of philosophy of education (pp. 104–121). Oxford University Press. https:// doi.org/10.1093/oxfordhb/9780195312881.003.0007 Copley, T. (2005). Indoctrination, education, and God: The struggle for the mind. SPCK. Dewey, J. (1997). Democracy and education. Project Gutenberg. [First published 1916]. Freire, P. (2000). Pedagogy of the oppressed. Continuum. [First published 1972]. Hand, M. (2006). Is religious education possible?: A philosophical investigation. Bloomsbury Publishing Plc. Hand, M. (2018). A theory of moral education. Routledge. Hare, W. (1979). Open-mindedness and education. McGill-Queen’s University Press. Kohlberg, L. (1984). The psychology of moral development: The nature and validity of moral stages. Harper & Row. Lewin, D. (2022). Indoctrination. Journal of Philosophy of Education, 56, 612–626. DOI: 10.1111/1467-9752.12668 MacLeod, J. (2022). Leathered: 40 years on, parents’ battle to get belt banned in ­Scotland hailed, The Sunday Post, 4 July 2022. https://www.sundaypost.com/ fp/belt-banned-in-scotland/ Marples, R. (2010). What is education for? In R. Bailey (ed.), The philosophy of education: An introduction (pp. 35–47). Bloomsbury.

74  Judicial definitions of education Marshall, K. (2010). Spare the rod: Campbell and Cosans v United Kingdom. In J. Grant & E. Sutherland (eds.), Scots Law tales (pp. 177–204). Edinburgh University Press. https://doi.org/10.3366/edinburgh/9781845860677.003.0010 Martin, J. R. (2011). Education reconfigured: Culture, encounter, and change. Taylor & Francis. McGrath, R., H. Han, M. Brown, & P. Meindl (2022). What does character education mean to character education experts? A prototype analysis of expert opinions. Journal of Moral Education, 51(2), 219–237. DOI: 10.1080/03057240. 2020.1862073 Morton, J. (2014). Molding conscientious, hardworking, and perseverant students. Social Philosophy and Policy, 31(1), 60–80. DOI: 10.1017/S0265052514000119 Peters, R. (1966). Ethics and education. Allen and Unwin. Piaget, J. (1926). The language and thought of the child. Routledge & Kegan Paul. Russell, B. (1977). Education and the social order. Unwin. [First published 1932]. Scribner, C., & B. Warnick (2021). Spare the rod. University of Chicago Press. Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Snook, I. (1972). Indoctrination and education. Routledge & Kegan Paul. Standish, P. (1999). Education without aims? In R. Marples (ed.), The aims of education (pp. 35–490). Taylor & Francis Group. Wareham, R. (2019). Indoctrination, delusion and the possibility of epistemic innocence. Theory and Research in Education, 17(1), 40–61. DOI: 10.1177/ 1477878518812033 White, J. (1970). Indoctrination. Journal of Philosophy of Education, 4(1), 107–120. https://doi.org/10.1111/j.1467-9752.1970.tb00429.x Wollstonecraft, M. (1995). Vindication of the rights of woman: With strictures on political and moral subjects. Dent. [First published 1792]. Zucca, L. (2012). A secular Europe: Law and religion in the European constitutional landscape. Oxford Academic. https://doi.org/10.1093/acprof:oso/ 9780199592784.003.0007

5 Judicial assumptions about curriculum design

The religious education curriculum is probably the most obvious issue for appeals to ECtHR under A2P1 since what is most likely to come into conflict with parents’ convictions is the teaching of their or others’ religious or philosophical positions in the classroom. Though, as Dojan v. Germany1 and Kjelsen et al v. Denmark2 show, sex and relationships education can also raise these concerns. Also, and quite apart from religious education, across different “countries, we will find varying history and practices, and different ideas of what the term ‘curriculum’ implies, and there will, of course, also be varying ideas of curricula nationally as well” (Bråten 2015, p. 144). The religious education curriculum raises these general as well as specific questions about curriculum design, in deciding what religion/s is/are included, the reasons for selecting them, and how they are sequenced across schooling. The variety of national models across Europe is vast, and has been comprehensively mapped out in a six-volume set regionally by researchers3 from the University of Vienna, for example, on Central Europe (Rothgangel, Jäggle & Schlag 2014). Three broad approaches to religious education in Europe have been identified (e.g., Leigh 2012): no or minimal religious education, such as France; education within a religious tradition, such as Greece or Germany; the academic study of religious and philosophical perspectives, such as England or Sweden. However, most educational systems are comprised of more than one approach. In England, there are both state-funded faith schools offering the second approach, and other state schools providing the third; in France also, state funding for private schools under contextual arrangements means that there is a combination of the first and second since most of these private schools are religiously affiliated (see Raynaud 2019). These differences raise questions of terminology. The second and third approaches are often distinguished in English-language research as “religious instruction” and “religious education”, respectively. However, the ECtHR does not pay attention to these distinctions (see Cumper 2011) and uses either term for any approach to the subject; for instance, in Yalçin v. Türkiye,4 DOI: 10.4324/9781003393276-5

76  Judicial assumptions about curriculum design the court systematically used religious instruction throughout. This may be because some judgments are initially given in French, in which this distinction, between enseignement religieux and education religieuse, is less established. Cases also use “religious knowledge”, for example, Angelini v. Sweden.5 Sadly however, the Court sometimes deploys these terms indiscriminately within the same judgment; here, from as recently as 2018, is an extract from Papageorgiou et al. v. Greece6: Where a Contracting State includes religious instruction on the curriculum for study, it is necessary, in so far as possible, to avoid a situation where pupils face a conflict between the religious education given by school and the religious or philosophical convictions of their parents. In this connection, the Court notes that, with regard to religious instruction in Europe and in spite of the variety of teaching approaches, almost all member states offer at least one route by which pupils can opt out of religious education classes, by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or making attendance at religious studies entirely optional. (Paragraph 82, italics and underlining added) Initially, it might appear that the Court is distinguishing between schoolbased religious instruction and a wider religious education from home, potentially including religious institutions. This would be a valuable distinction to make. It then, however, refers to religious education classes, i.e., in school, suggesting that religious education covers the curriculum subject. Finally, it tops it off by referring to religious studies, which could be construed as the most neutral term, in discussing the right of withdrawal. Given the significance of the right for appellants and states, one can only wish for more clarity. The differences in approach matter because the ECtHR has considered that pupils (and their parents on their behalf) have the right to opt out of religious education under certain conditions. The broader legal background had been set out in Kjeldsen, which as noted previously (Chapter 4), established the broad requirements for the curriculum to be “conveyed in an objective, critical and pluralistic manner” (Paragraph 53). In Kjeldsen, sex education was deemed to meet these criteria so pupils could not opt out. Likewise, religious education classes that meet these criteria would also be compulsory. Many of the cases are concerned with the provision of or mechanisms for the opt-out process rather than the curricular distinction per se, notably Papageorgiou and Grzelak v. Poland.7 In Papageorgiou, atheist parents wanted to withdraw their child from “Orthodox Christian instruction”; they had to obtain a solemn declaration seeking the exemption from the school authorities, who were obliged to inform them of the seriousness of

Judicial assumptions about curriculum design  77 the document and of making false statements. Then, the teacher had to counter-sign it. The student would then “have no right to remain in the classroom…and may under no circumstances roam inside or outside the school premises or be unjustifiably absent”. The parents won their appeal since this was considered too onerous a procedure (see Brzozowski 2020), though Berkmann (2022) has argued that the ECtHR case law is currently in tension, since while pupils and parents should have the right to opt out, it is potentially, paradoxically, in breach of their rights to ask them to declare their religious or philosophical affiliation in order to opt out. While noting the opt-out arrangements, they are not in themselves a curricular question, but rather the legal consequence of one. Pedagogically, it is the educational rationale for the distinction between the two curricular approaches that matters. The starting point is the three Kjeldsen principles, “objective, critical and pluralistic”, but as that case was about sex education these terms are somewhat abstract and should be considered in the context of religious education. Moreover, as Cumper (2011) noted, the judges in Kjeldsen were inconsistent in their discussions. On the one hand, they had held that A2P1 “does not permit a distinction to be drawn between religious instruction and other subjects” (Paragraph 51), suggesting that these criteria apply right across the entire school curriculum. On the other hand, they held a few paragraphs later that “there is a difference in kind between religious instruction and the sex education concerned in this case. The former of necessity disseminates tenets and not mere knowledge; …the same does not apply to the latter” (Paragraph 56). The distinction matters in that the requirements to be objective, critical and pluralistic might apply differently to “tenets” as opposed to “knowledge”. Objectivity about knowledge might mean ascertaining that what one was teaching was actually true, but objectivity about tenets might simply mean presenting them impartially. It is also unclear what is meant by “mere” when applied to knowledge. Overall, The European Court knows what does not constitute proper religious education…but is much less certain about what should be the proper aim of such lessons on religion or equivalent forms of belief. (Cumper 2011, p. 222) These remarks in 2011 preceded some leading cases, notably Yalçin and Papageorgiou, but which have not clarified the situation. Curriculum design in religious education There are some basic principles in curriculum design in religious education which are likely to be at stake in the Court’s decisions. The most obvious is

78  Judicial assumptions about curriculum design in stating the aim of religious education. For example, in Papageorgiou, “Orthodox Christian Education” was described as helping students to “develop into free, responsible, democratic citizens…in whom is instilled faith in their homeland and the genuine elements of the Orthodox Christian tradition” (para. 17, citing the Law on Education. Law no. 1566/1985). This clearly sets the scene for any further details in curriculum documents. By contrast, the current Swedish curriculum sets out the subject’s purposes as follows: The teaching in the subject of religious knowledge should aim for the students to develop knowledge about religion and outlook on life in Swedish society and in different parts of the world. Through the teaching, students should gain an understanding of how people within different religious traditions live with and express their religion in different ways. (Skolverket 2022) These contrasting purposes in Greece and Sweden would clearly frame any subsequent curricular structure and imply different intellectual demands. Other curriculum design elements are the academic disciplines or approaches underpinning the subject; the representation of religions or philosophical positions; the number of religions and other perspectives/worldviews studies; and content of specific modules and their progression. If the curriculum is an initiation into disciplines (Peters 1966, see Chapter 4), then the choice of disciplines matters. It has been the source of lively debate for religious education scholars. In confessional approaches, such as Greece or Germany, the model is likely to be broadly theological, drawing on scriptural hermeneutics, religious history and religious ethics, though there will still be internal debates about form and content (Liagkis 2015). Within these approaches, philosophy and ethics more generically may also be important. However, alongside these, learning may also include more devotional activities such as prayer, school services, liturgical reading, or singing hymns and other devotional songs. In countries that offer the study of different religions, there is a wider range of disciplines available, including psychology (Grimmitt 1987), sociology or anthropology of religions (Jackson 1997), philosophy (Wright 2015), and history. Indeed, some argue that a range of different approaches is required – for example, the “RE-searchers” project (Freathy et al. 2017). Objectivity and criticality may be achieved through these particular lenses, though others hold that they are irredeemably anti-religious by their very nature, preferring more devotional or theological lenses (Gearon 2013). In France, where teaching about religions is cross-curricular, the different curricular subjects provide the frame, such as philosophy (Gaudin 2017), history and geography (Allieu-Mary 2007).

Judicial assumptions about curriculum design  79 One aspect of disciplinarity, and especially of criticality, is attention to the forms of argumentation, in the sense of the making of claims that are justified and warranted according to the intellectual rules of the academic field, and research has often considered where and how this is presented in the curriculum, both in pluralistic models (e.g., Chan, Fancourt & Guilfoyle 2021), and more confessional approaches (e.g., Fuchs 2009). Indeed, the latter approaches may be better at developing argumentation because the underlying discipline is clearer. The challenge for pluralistic approaches is having too many potential disciplines, so it is unclear for teachers and students what might count as an argument. Further, any academic discipline may not appear in an academically pure form because there may be other educational aims informing the curriculum, such as personal development or social cohesion, and a requirement for recognition of plurality of beliefs may cut across a requirement to pick apart the justification by others of theological claims. The second aspect concerns representation. This is how the curriculum accurately portrays a particular religious or philosophical position (Barnes 2006; Shaw 2018; Thobani 2017), and links particularly to the Kjeldsen principles. It is important in ensuring that students have accurate knowledge, but also because wider social goals such as multi-faith social harmony will not be achieved if students leave school with an inaccurate image of others’ beliefs, nor indeed if some of the more controversial or challenging aspects of a belief are ignored (Smith, Nixon & Pearce 2018). Where students adhere to a particular religion and religious education is inculcation into that tradition, whether as an intellectual process or as practice, then the issue of representation is more straightforward. Where religious education offers the study of different religions, then pupils will be asked to grasp the doctrines, values and practices of others: a Hindu pupil will be asked to grasp the Christian doctrine of incarnation, Muslim rejection of images of God, or the atheist rejection of life after death (Fancourt 2014). Jackson (1997) has argued that this resembles the insider/ outsider challenge in the social sciences, notably ethnography, and that it is affected by the choices about disciplinary approaches, in that most Western intellectual approaches to religion are based on a model of Christianity and other Abrahamic religions, which distort Indic traditions such as Hinduism or Sikhism (see also Nesbitt 2013). There are therefore two potential convictional risks. One is a risk from pluralism to a student’s own beliefs through exposure to other beliefs, for example, a Muslim pupil who adopts Hindu ideas from their classes. The other is from a lack of fairness as an aspect of objectivity and linked to over-criticality, as a pupil’s own beliefs may be misrepresented, for example, a Muslim pupil who rejects their own faith because it is mis-portrayed as irredeemably linked to terrorism in lessons.

80  Judicial assumptions about curriculum design The third concern is the number of religions and beliefs to be studied across schooling. Clearly in a more confessional model, one religion – or denomination or branch of the religion – will be paramount. Indeed, it is possible to adopt an objective, critical and pluralist approach that only studies one religion, according to an earlier case, Angelini, in which an atheist student could not be withdrawn from a non-confessional approach to Christianity. Even within a broadly mono-religious approach, other religions may be mentioned, whether as a separate unit of study from the perspective of the main religion, or indeed throughout, notably in accounts of Judaism within Christian theology. If a pluralistic world religions model is to be adopted (Alberts 2007), the next question is how many religions to include, and the balance between them. In Hamburg, Germany, four religions were identified: Buddhism, Christianity, Islam and Judaism (Weisse 2013). In England, the “Big Six” were initially identified (School Curriculum and Assessment Authority 1994): Buddhism, Christianity, Hinduism, Islam, Judaism and Sikhism. This list is often critiqued, not least by those arguing for the inclusion of non-religious worldviews (see Holt 2019) and raises questions about the appropriate locus for determination: the largest religions/beliefs in the world, country, region, locality – or just the school or classroom itself. There is also a question about the appropriate maximum number, and whether, in the two examples above, Hamburg has too few religions and should add more so that pupils are more aware of different religions, or England has too many, and pupils are simply confused. Kay & Smith (2000) found that English students who studied five or six recalled facts about them with less accuracy than those who studied between two to four religions. Further, however, particular religions might be prioritised; for example, English legislation demands that the local syllabuses “shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain” (UK Government 1988, s. 8(3)). The implications of this for curriculum planning are unclear since it neither specifically requires more modules on Christianity nor more time allocation. The use of “religious tradition” also points to another challenge, which is in determining the difference between different religions or between a religion and a denomination or branch. Holt (2019) is particularly concerned with the representation of the Latter-Day Saints, whether as a separate religion, Christian denomination or some other category, and Nesbitt (2013) has commented on the blurred boundaries between Hinduism and Sikhism, often lost in school textbooks, notably over the position of caste in both of them. The final concern is around curriculum planning, and especially the sequencing of religions and beliefs throughout the curriculum. One question is whether the religions and beliefs should be taught systematically or thematically. A systematic approach would address each of them discretely,

Judicial assumptions about curriculum design  81 so, for example, a module on Christianity would be followed by another on Islam, and then a third on Humanism. A thematic approach would address several religions through a particular theme, such as religious phenomena, for example, sacred texts or worship, or a theological, philosophical or ethical issue, for example, identity, the problem of suffering or animal rights. A third option is to combine these approaches; for example, a module on Jesus’ parables is followed by one on Charity/Giving in Christianity, Judaism and Sikhism, and by one on the life of Guru Nanak. Kay & Smith (2000, 2002; Smith & Kay 2000) conducted large-scale quantitative research on these different approaches and argued that students’ knowledge was more precise under a systematic approach and that they had more positive attitudes to the different religions. They also found that the third, mixed approach was the worst for understanding. Their work is now old, but it still raises important questions about the effect of different approaches. A further question is at what stage these different religions and beliefs are encountered. The four, six or however many could run through the entire curriculum from infancy to the end of secondary education at 18, or they could be studied separately at various stages, for example: Christianity and Hinduism in lower primary, Islam and Sikhism in upper primary, and Buddhism and Judaism in lower secondary. To teach all of them throughout could enable steady progression in students’ knowledge of each but would mean that there was little time on each at each phase. To focus on one or two in each school phase would enable greater depth at each stage, but might mean that pupils stopped learning about some religions at a young age: no Judaism in secondary school, for example. This decision is bound up in questions about the overall disciplinary approach, including the kinds of intellectual skills that are demanded, and the wider social goals of the subject, in a local or national context. Thus, the Swedish curriculum sets out three intellectual skills: • knowledge of religions and other views of life as well as of different interpretations and varying practices within these. • ability to critically examine issues relating to the relationship between religion and society. • and ability to reason about ethics, moral issues and life issues from different perspectives. (Skolverket 2022) It emphasizes Christianity, including its historic role in Swedish society, and with Islam, Judaism and Sami religion in lower primary, then adds in Hinduism and Buddhism to the three world religions in upper primary. It then covers all five world religions in more depth (e.g., internal denominations and differences) and with humanism and atheism in lower secondary. This pattern

82  Judicial assumptions about curriculum design may also reflect the fact that primary teachers are usually generalists teaching across the curriculum, whereas secondary school teachers are more likely to be subject specialists who could better cover a wider plurality of beliefs (see, from Ireland, Heinz, Davison & Keane 2018). Curriculum planning can therefore also be affected by pragmatic concerns about teacher expertise as much as by a theory of academic development or disciplinary knowledge. In addressing the Kjeldsen principles (objectivity, criticality and pluralism), these four concerns may cut across courts’ decisions on curriculum: the subject disciplines, representation, the number of religions and perspectives, and the sequencing of them across modules. The cases Three cases are considered. First, in Folgerø v. Norway,8 from 2006, the Court considered if a new pluralistic curriculum was still confessional, requiring an opt-out clause. The other two cases both concerned the treatment of a religious minority (Alevites) in the Kemalist-secular Sunni-­ dominated Turkish curriculum: Zengin v. Türkiye,9 in 2007, and, in 2014, Yalçin v. Türkiye.10 A difference in emphasis? Folgerø and others v. Norway

Folgerø concerned nine individuals from three families: Mrs Ingeborg Folgerø, her husband Geir Tyberø and their son Gaute Tyberø; Mrs Gro Larsen, Mr Arne Nytræ, and their sons, Adrian and Colin Nytræ; Mrs Carolyn Midsem and Eivind Fosse, her son. They all objected to recent changes to the Norwegian curriculum, the introduction of “Christianity, Religion and Philosophy” (Kristendomskunnskap med Religions-og Livsynsorientering, known as KRL) (see Lied 2009; Slotte 2011). This new syllabus had been introduced as a more pluralistic approach than the previous version, which had been rooted in Lutheran confessionalism. The previous version had provided an opt-out clause, but this had been removed, no longer deemed necessary because the legislators considered that pluralism was best served through compulsory classes. The appellants, however, considered that the new syllabus was inappropriate as their negative freedom, not to receive religious education that was against their own beliefs, was being infringed. They brought the action under A2P1, initially with the Norwegian Humanist Association, of which all parents were members, in an instance of grassroots mobilisation, but this organisation had to withdraw as it had no legal standing. The case concerned the absence of an opt-out clause, but this was only triggered because of a question about the form of the curriculum. It was of such complexity that it was heard by a Grand Chamber of 17 judges, from a wide range of

Judicial assumptions about curriculum design  83 states, with different models of religious education: Jean-Paul Costa (France, and president); Lucius Wildhaber (Switzerland); Christos Rozakis (Greece); Boštjan Zupančič (Slovenia); Peer Lorenzen (Denmark); Françoise Tulkens (Belgium); Corneliu Bîrsan (Romania); Nina Vajić (Croatia); Margarita Tsatsa-Nikolovska (North Macedonia); Anatoly Kovler (Russia); Vladimiro Zagrebelsky (Italy); Elizabeth Steiner (Austria); Javier Borrego Borrego (Spain); Khanlar Hajiyev (Azerbaijan); Dean Spielmann (Luxembourg); Sverre Erik Jebens (Norway); Ineta Ziemele (Latvia). The Court found for the appellants, by nine votes to eight, indicating that it was a closely considered decision. Two judges (Zupančič and Borrego Borrego) considered that they should not have to hear the issue at all because the parents had also appealed to the United Nations Human Rights Committee in Geneva (see Hagesæther & Sandsmark 2006). On the substantive question, eight (Wildhaber, Lorenzen, Bîrsan, Kovler, Steiner, Borrego Borrego, Hajiyev and Jebens) rejected the appeal on its merits. The majority and dissenting judgments present different judicial pedagogies. The judges’ first strategy was to consider the stated objectives of the course. This was not straightforward because there was conflicting wording within the relevant Education Act. In its opening, it stated that “the object of primary and lower secondary education shall be, in cooperation with the home, to help give pupils a Christian and moral upbringing” (Paragraph 22, citing Section 1-2(1), the Education Act 1998). This would suggest some degree of inculcation into Christianity. It then set out the subject’s goals as i Transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith; ii Transmit knowledge of other Christian communities; iii Transmit knowledge of other world religions and philosophies, and ethical and philosophical subjects; iv Promote understanding and respect for Christian and humanist values; v Promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions… The subject shall not be taught in a preaching manner. (Paragraph 23, citing Section 2-4) These two sections were open to different interpretations. One could highlight the focus on Christian upbringing in Section 1-2(1), and the use of “Faith” in section (i), arguing that these would dominate the curriculum in promoting Christianity. By contrast, one could highlight the terminology of transmission of knowledge of other religions and philosophies in (iii), the promotion of understanding (iv and v), and the prohibition on preaching,

84  Judicial assumptions about curriculum design arguing that these would set the boundaries for the treatment of Christianity within a world religions approach. The majority adopted the former interpretation, while the dissenters adopted the latter. The next concern, the appropriate academic discipline at stake, received limited attention in the Court’s discussions. This may be because there was little in the Norwegian documentation, focusing simply on the transmission of knowledge and promotion of understanding. The only exception is in acknowledging that Christianity had a “place…in the national history and culture of the respondent State” (Paragraph 89), thereby acknowledging its historical value, though not history as a discipline. There are however some references to nuanced intellectual skills for grades 5–7 (all from Paragraph 50), such as biblical hermeneutics, “learn something of how [the Ten Commandments and the Sermon on the Mount] have been used in the history of Christianity and how they are applied today”, “The history of the Bible”, and “Various contemporary interpretations of Christianity”; history, “The modern history of Christianity”, and “The history of the Bible”; philosophy and ethics, in “philosophical interpretations of man, values and norms”. There was an opportunity missed in not considering this intellectual framing of these subjects, particularly as they are more apparent in the demands higher up through schooling. The third concern, representation, was also not explicitly considered but raises some questions alongside the final two concerns, number and sequencing. Given the ambivalence in the subject’s objectives, the majority-ruling judges paid close attention to the heavy focus on Christianity, i.e., the question of sequencing. They pointed to the requirement of thoroughness, in the difference between transmitting thorough knowledge of Christianity and simply transmitting knowledge of other religions (see above) and criticised this differential treatment throughout the curriculum, such as “learning the fundamentals” of Christianity but only the “main features of and important narratives from” other religions (Paragraph 93). They were also concerned that pupils would feel obliged to take part in various associated activities, which seemed to favour Christianity, such as prayers or (church) visits. The accumulation of issues led the majority to hold that there were “not only quantitative but even qualitative differences”, and further held that the aim of promoting understanding would be affected because there could not be “a uniform pedagogical approach” (Paragraph 95). The dissenting judges did not agree, considering that the “notion of knowledge went hand in hand with mutual understanding and respect and with intercultural dialogue…The fact that Christianity was given priority is true only as far as the quantity of the different religions and other elements…is concerned” (Dissenting judgment). Behind this split, there are some other issues that the Court did not address, but which could have led to a different outcome. One is the differential treatment of Lutheranism compared to other denominations, other religions and

Judicial assumptions about curriculum design  85 secular orientations. The Lutheran “Faith” had the “thoroughness” criterion applied in the statutory goals, in (i) above, but “other Christian communities”, lacked this criterion, and were treated akin to the other religions, in only requiring the lower threshold. This could point towards a more confessional approach. By contrast, the actual curriculum document stated: Christian faith and ethics. Pupils should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther’s Small Catechism. Other religions. pupils should study the main features of and important narratives from Islam, Judaism, Hinduism, and Buddhism. Secular orientations. Pupils should know about secular orientations, the development of the humanist tradition, and the modern humanist view of life. (Paragraph 50, citing the Curriculum document) There is no mention of other Christian traditions here, and Christianity is subsumed within an explicitly Lutheran lens; for example, it is unclear where or how pupils’ understanding of the Orthodox or Catholic church would be developed. Further, while the judges focused on the command words, the remainder of each summary describes different elements. Secular orientations seem to occupy an intermediate place, given that a range is suggested, and their development and contemporaneousness are highlighted, but neither of these aspects is emphasised for the other religions – why not “the development of the Hindu tradition and the modern Hindu view of life”? Instead, “features” and “narratives” are emphasised for these religions, though it is unclear why these are selected; the term “features” is vague, and “narratives” might not be important for insiders of that religion. A common complaint in the representation of Hinduism is an over-reliance on retelling narratives such as the Ramayana or the Mahabharata, rather than engagement with its philosophy or theology (Jackson et al. 2010). Overall, this section of the curriculum seems to give more academic weight to the study of secular views than to other denominations or religions, and close attention to it might have affected the close decision. Religions and their branches: the Turkish Alevi cases

The curricular issue of the representation of branches of a religion was addressed in two significant cases: Zengin, in 2007, and Yalçin, in 2014 (see Kaymakcan & Hendek 2022; Türkmen 2009) They both concerned the representation of Alevism in the Turkish religious education curriculum. The first, Zengin, was contemporaneous with Folgerø and went against Türkiye; in the second, Yalçin, the ECtHR reviewed amendments to the

86  Judicial assumptions about curriculum design curriculum to address the decision in Zengin. The former was heard by JeanPaul Costa (Court president, from France), András Baka (Hungary), Ireneu Cabral Barreto (Portugal), Rıza Türmen (Türkiye), Mindia Ugrekhelidze (Georgia), Antonella Mularoni (San Marino) and Elizabet Fura-Sandström (Sweden). Costa was also president for Folgerø, but the other judges were different. Hasan Zengin and his daughter, Eylem, were Alevis, which is to say members of a minority branch of Islam found in Türkiye: Alevism originated in central Asia but developed largely in Turkey. Two important Sufis had a considerable impact on the emergence of this religious movement: Hoca Ahmet Yesevi (12th century) and Haci Bektaşi Veli (14th century). This belief system, which has deep roots in Turkish society and history, is generally considered as one of the branches of Islam, influenced in particular by Sufism and by certain pre-Islamic beliefs. (Paragraph 8) Notably, Alevis generally neither follow sharia law, nor practice Sunni prayer rituals nor hajj. They worship in a cemevi, not a mosque, in a ritual of song and dance, akin to Sufi practice. Hasan Zengin applied to the authorities for his daughter to be withdrawn from “religious culture and ethics” classes as these were incompatible with his beliefs. While the subject included different religions, he argued that for Islam the syllabus only offered a Hanafite version of Sunni Islam and neither addressed nor recognised Alevism. The government did not dispute that Alevism was a distinct branch of Islam, but considered overall Islam was appropriately presented. The emphases and omissions in teaching about Islam were pivotal. Zengin’s application was refused by the education authorities and then the Turkish courts because the classes were compulsory, and the Turkish education system is considered secular and not confessional. The right to withdraw existed, but only for Christians and Jews. Hasan Zengin took the matter to the ECtHR under A2P1, where the curricular argument was summarised: The applicant alleged that no teaching was provided on the Alevi faith or its rituals in the compulsory “religious culture and ethics” lessons, although this religious movement differed in numerous areas from the conception of religion presented in school. According to the Government, this resulted from the fact that, in this syllabus, the vision of members of a branch of Islam or of a religious order represented in the country was not taken into consideration. (Paragraph 65)

Judicial assumptions about curriculum design  87 The ECtHR considered the relevant national legislation and curriculum documents, as in Folgerø, and reviewed the approved textbooks; this strategy raises some questions about where the curriculum is located. In this case, with a strongly centralised curriculum, with prescribed textbooks, it would be reasonable to review them, though there was no indication that they were actually used in classrooms (see Türkmen 2009). In educational systems that offer more autonomy to schools or teachers, textbooks might be less relevant. For example, in England, some teachers considered that textbooks were only for use by non-specialists or when specialist teachers were absent (Jackson et al. 2010). Their use, and notably the challenges of representation of various religions, have been well analysed; for instance, Porić & Črnič (2021) show how Slovenian “textbooks often present a violent version of historical contacts with Muslims” (p. 133), echoed for Italian textbooks by Borghi & Lucenti (2020). Other documents may be more relevant; in Folgerø, the court discussed whether teachers could share their lesson plans with parents in advance of lessons so that they could decide whether to withdraw their children, thereby impliedly pointing to these as part of the curricular process. The Court therefore must pay attention to the national variations in the various levels in religious education curriculum design and delivery – as Bråten (2015) noted. Focusing on two of the Kjeldsen principles, the Court found, as in Folgerø, that there was a misalignment between the higher-order language and the detailed wording of the specifications and textbooks, concluding that the curriculum …cannot be considered to meet the criteria of objectivity and pluralism and, more particularly in the applicants’ specific case, to respect the religious and philosophical convictions of Ms Zengin’s father, a follower of the Alevi faith, on the subject of which the syllabus is clearly lacking. (Paragraph 70) The reasoning in this decision focused largely on representation and sequencing, though the question of disciplinarity also arose when the court considered whether the broad curricular principles were compatible with A2P1. They were, in that The subject is to be taught in compliance with respect for the principles of secularism and freedom of thought, religion and conscience, and is intended to “foster a culture of peace and a context of tolerance”. It also aims to transmit knowledge concerning all of the major religions. One of the objectives of the syllabus is educate people “who are informed about the historical development of Judaism, Christianity, Hinduism and Buddhism, their main features and the content of their doctrine, and to be

88  Judicial assumptions about curriculum design able to assess, using objective criteria, the position of Islam in relation to Judaism and Christianity”.11 (Paragraph 58, quoting the Turkish guidelines) The court here implies different disciplinary perspectives or certain outcomes for the academic approach taken. At an epistemological level, it here prioritises the aims to “transmit knowledge”, to be “informed about the historical development” of different religions, and to use “objective criteria” in assessing the relationships between Islam, Christianity and Judaism. This hovers between religious studies and history education. However, the ethical and epistemological implications of seeking to “foster a culture of peace and a context of tolerance” are not explicit. If the paragraph is to be taken as a unity, then the implication is that this fostering is provided through these epistemological aims, thus, through knowledge of different religions, their historical development and inter-relationships. The main dispute was about representation. First, it first noted the strong emphasis on Islam in the teaching programme, recognising, This itself cannot be viewed as a departure from the principles of pluralism and objectivity which would amount to indoctrination…having regard to the fact that, notwithstanding the State’s secular nature, Islam is the majority religion practiced in Turkey. (Paragraph 63) As noted in Folgerø and Angelini, the curriculum could be focused on one religion. The judges then considered finer details, including commenting: As to the textbooks used in the context of these classes, examination shows that they are not limited to transmitting information on religions in general; they also contain texts which appear to provide instruction in the major principles of the Muslim faith and provide a general overview of its cultural rites, such as the profession of faith, the five daily prayers, Ramadan, pilgrimage, the concepts of angels and invisible creatures, belief in the other world, etc. (Paragraph 61) This implies that the textbooks had crossed a boundary, from “transmitting information” to “provide instruction”. However, the examples do not clarify this distinction. To transmit information on Islam, any curriculum would rightly include its major principles and “a general overview of its cultural rites”, i.e., here, the Iman and the Five Pillars. One would imagine that the textbook on the other religions would include similar kinds of information/ instruction. Elsewhere, there was an indication that the Court objected to a

Judicial assumptions about curriculum design  89 normative theological representation because it pointed out that the curriculum specification: …aims to raise awareness among pupils of “[the fact that] acts of worship, as well as being demonstrations of love, respect and gratitude towards Allah, enable the individuals in a group to bond with love and respect, to help each other, to show solidarity” and “using different examples, to explain that, far from being a myth, Islam is a rational and universal religion”. The syllabus also includes study of the conduct of the prophet Mohamed [sic] and of the Koran. Equally, the syllabus for the 7th grade includes teaching on fundamental aspects of the Islamic religion, such as “pilgrimage and sacrifice”, “angels and other invisible creatures” and “belief in the other world”. (Paragraph 59) Here, the first sentence highlights potentially more confessional elements, but only if pupils are being taught to worship in this way; even here it is arguably still objectively true that Muslims might understand their worship in this manner, and non-Muslims should know this about Muslims. The Court seems to distrust an implied move from acquisition of knowledge to participation in rituals but blurs this with an awareness of insiders’ perspectives. The second element of the first sentence, debunking the “myth”, is the most normative element, since one would have to present the argument that Islam is a myth to refute it. The second sentence, on Muhammad and the Qur’an, and the third, on fundamental beliefs, both seem also to be simply transmissible knowledge. Indeed, it is difficult to see how anyone could teach about many religions without mentioning “belief in the other world”. In short, the Court blurred issues of theological normativity with questions of content. This became manifest in whether and how Alevism was presented, in that the argument was about objectivity and pluralism. As the Government have recognised, however, in the “religious culture and morals” lessons, the religious diversity which prevails in Turkish society is not taken into account. In particular, pupils receive no teaching on the confessional or ritual specificities of the Alevi faith, although the proportion of the Turkish population belonging to it is very large. (Paragraph 67) This is striking for various reasons. First, despite drawing a distinction earlier between “transmission of knowledge” and “providing instruction” in which confessional and ritual elements were classed in the latter, here the problem is precisely the lack of “teaching on the confessional or ritual

90  Judicial assumptions about curriculum design specificities”, which suggests that these should be done suitably to conform with A2P1. Second, the court implied that curriculum decisions about religions and religious traditions or denominations should consider national patterns of religiosity. Hypothetically, one could argue that in teaching pupils about world religions, the overall global trends of different religions would be more important, so a focus on Sunni Islam is appropriate, and Alevism is simply not significant enough within this wider perspective, as long as the curriculum meets the Kjeldsen principles. This argument was then extended into consideration of the question of sequencing: As to the Government’s argument that certain information about the Alevis was taught in the 9th grade, the Court…considers that, in the absence of instruction in the basic elements of this faith in primary and secondary school, the fact that the life and philosophy of two individuals who had a major impact on its emergence are taught in the 9th grade is insufficient to compensate for the shortcomings in this teaching. (Paragraph 67) This made a judgement about curriculum balance, specifically the lack of attention to Alevism at certain stages of schooling. However, it is unclear if Alevism is required throughout the curriculum, or if more attention in Year 9 would suffice. As noted above, there are reasonable educational grounds for focusing on particular religions or traditions at different stages of schooling, and not requiring all religions at every stage. The court’s final statement on this aspect of the case reveals the tensions between the aims of objectivity and pluralism, and respect for convictions: The Court concludes that the instruction provided in the school subject “religious culture and ethics” cannot be considered to meet the criteria of objectivity and pluralism and, more particularly in the applicants’ specific case, to respect the religious and philosophical convictions of Ms Zengin’s father, a follower of the Alevi faith, on the subject of which the syllabus is clearly lacking. (Paragraph 70) However, the Court did not address the educational challenge of meeting these three very different criteria in the curriculum. Objectivity does not automatically require attention to national features of a religion, or particular local traditions or denominations; one could equally argue for a world religions approach, which to some extent was what the Turkish government attempted. Pluralism could also be met through a world religions approach, though it is worth noting that the judgment overrules Angelini, which

Judicial assumptions about curriculum design  91 accepted a focus on one religion or denomination. As noted, the Court did not address criticality, but this would also be required. Attention to parental convictions would mean that the curriculum could be determined locally, not in relation to world or national religious trends, but to each school or class. The infringement of rights is for the individuals concerned, not a hypothetical situation. Indeed, if a Turkish teacher only taught Sunni students, one could argue that they would not be obliged to include Alevism in the curriculum since no rights would be at risk. The underlying issue is that the court is making curricular judgments based on parental convictions, so that for example, the court did not have to consider if Christianity and Judaism were taught objectively because Muslim, or Alevi, parents would not bring a claim on these grounds. Christian and Jewish parents would have the right to opt out, so had no grounds to appeal against how they were portrayed in the curriculum. These issues were re-argued in Mansur Yalçin v. Türkiye, in 2014, seven years later, which also concerned the representation of Alevism in the Turkish curriculum, largely in the light of changes in response to Zengin. The curriculum included more explicit reference to Alevism at some stages of schooling. To some extent, the case hinged on the fact that the government had not implemented all the reforms that had initially been planned, which had disappointed many Alevis. It was brought by 14 appellants, all parents, under A2P1, A9 and A14. It was heard by different judges from Folgerø and Zengin. Guido Raimondi, (from Italy) was president, with Işıl Karakaş (Türkiye), András Sajó (Hungary), Nebojša Vučinić (Montenegro), Egidijus Kūris (Lithuania), Robert Spano (Iceland) and Jon Fridrik Kjølbro (Denmark). The Court again reviewed various curriculum documents and textbooks, and crucially an independent review which was quoted at length, and which both provided some pedagogical analysis for the Court, drawing on the Toledo Principles (OSCE/ODIHR 2007). The issue of the number of religions studied was never in question, and it was accepted that the texts had been amended to include explicit references to Alevism throughout all stages of schooling so that the issue of sequencing was not contested. However, as will be shown, the question of the disciplinary lens, notably the use of a Sunni theological and ethical frame, and representation were still deeply problematic. The Court decided in favour of the appellants because, in short, “the changes did not entail a real overhaul of the key components of the syllabus, which focuses primarily on knowledge of Islam as practised and interpreted by the majority of the population in Turkey” (Paragraph 68). This decision was unanimous; on a separate question as to whether there was a broader issue here under Article 9 about this case as evidence of wider treatment of Alevis’ freedom of belief, the majority dismissed the appeal, though Judges Sajó, Vučinić and Kūris dissented. On the main question, there were two strands of deliberation: the language and representation of Sunni Islam, and

92  Judicial assumptions about curriculum design contrastingly of Alevism. Sunni Islam was presented as normatively correct, for example: The surahs of the Koran and the practice of prayer (Salat) were regarded as elements to be acquired [and] the syllabus for religious culture and ethics is structured around the fundamental concepts of Islam, such as the Koran and the Sunnah. (Paragraphs 69, 71) Here, elements that Alevis did not consider to be relevant, i.e., Salat and Sunnah, were presented as being essential. By contrast, The principal Alevi rites (notably the cem and the semah) were presented as cultural activities or folk rituals rather than as religious rites, and the cemevi was not recognised as a place of worship in keeping with its status in the Alevi faith. (Paragraph 68) These two curricular features meant that Alevism was presented “from a ‘Sunni’ perspective, as a cultural and traditional concept rather than a branch of Islam in its own right” (Paragraph 68). The judges were often cautious in their approach, which is almost inevitable when the appellants are concerned about the representation of their own beliefs; it is more straightforward to review the extent to which a distinctly different belief is being imposed, as in Folgerø. The lack of explicit attention to a disciplinary lens meant that while they could explain the kinds of statements that troubled them, they were also cautious of engaging in a theological dispute themselves: “In so far as the case concerns a debate surrounding Muslim theology, it is not for the Court to take a stance” (Paragraph 70). Instead, they appealed to the three Kjeldsen principles, but these do give them the right level of language to describe the more suitable academic lenses. They do not have to enter into theology, but they could have recognised that theology is one of the potential disciplines at stake. Another feature of this is the identification of some features of a religion as “cultural”. In the quotations above, the label of “cultural” activities or concepts is considered inferior to being an element within the religion itself and linked to “traditional” or “folk” elements. This is a change in tone from Zengin, in which the term had been used descriptively, drawing possibly from the subject’s title “Religious culture and ethics”; for example: to provide instruction in the major principles of the Muslim faith and provide a general overview of its cultural rites, such as the profession of faith, the five daily prayers. (Folgerø, Paragraph 61, emphasis added)

Judicial assumptions about curriculum design  93 These rites are not in question as being essential elements of Sunni practice, so the term is not being used in contradistinction to religion. From the judgment alone, it is unclear how the term ‘culture’ was being used across the curriculum in relation to Sunni Islam, but also Shi’ism, Sufism, Judaism or Christianity. Lastly, the court partially avoids this discussion by referring to the lack of an opt-out provision for Alevis, in comparison to Jews and Christians, and suggesting that there may always be problems unless an opt out is provided, thereby making it unnecessary for the Court to have to decide. A case about the misrepresentation of the appellants’ beliefs could require nuanced theological and pedagogical analysis, which the Court sought to bypass. In considering Bruner’s (1996) and Sfard’s (1998) models and metaphors, these three cases generally impliedly adopt an acquisition metaphor, or didactic model, since they concern curricular documents that highlight the knowledge to be imparted. However, they can also be seen to move across different positions. One issue is about preventing students from participating in or imitating religious practices that are not their own, notably devotional content or rituals, such as Salat. The central issue is the mismatch between a pupil’s insider views as Alevis and the framing of an objective view of Alevism in lessons on Islam. The nuance of being part of a particular branch of a broader religion was absent. However, it is unclear whether the ECtHR considered that pupils should be taught about their own religion as a form of information-giving (Bruner’s second model), or if they accepted (under Bruner’s fourth model) that there could be an epistemic space between pupils’ insider beliefs as Alevis and objective knowledge of Alevism in the curriculum, but in which case pupils were not being given the latter accurately, against which to position their insider perspectives. Under this fourth model, the risk is a false hermeneutic. Conclusion This chapter has considered four important aspects of curriculum design in relation to religious education: disciplinarity, representation, number and sequencing. The discussion of these issues across three leading cases (­Folgerø, Zengin and Yalçin) has shown how the Court has engaged with them implicitly and explicitly in seeking to apply the three Kjeldsen principles of objectivity, criticality and pluralism – as well as the need to respect the pupils’ and parents’ convictions. Disciplinarity is not explicitly identified by the ECtHR, but issues about the nature of the subject’s theoretical lens underpin all three decisions because it affects objectivity and criticality. While at primary school disciplinarity might not be clear, it would certainly become more evident in secondary teaching, as the curriculum documents in Folgerø showed. The question of representation, and misrepresentation, was important in the Alevite cases since what was at stake was where and

94  Judicial assumptions about curriculum design how Alevism sat within Islam, particularly in relation to Sunni Islam. Representation affected all three criteria, in determining an objective position, in judging how to be appropriately critical, and in covering the plurality of branches of Islam. On the question of pluralism, numbers of religions and other worldviews mattered most, though was never essential, and was linked to whether and how religious minorities were presented. All three cases show how a balance is important across schooling. Sequencing was also linked to issues of pluralism, in terms of breadth and depth, notably in Folgerø, where the different degrees of coverage were linked to number, and in Zengin, where the late coverage of Alevism in Year 9 was insufficient. In all three cases, there was a tension between meeting the three criteria at a curricular level and respecting the rights of different convictions in the school or classroom. The cases inevitably tend towards an acquisition approach, though participation is inferred, as is Bruner’s fourth model, of knowing. These raise questions about the status of the teacher in presenting the curriculum, so the next chapter (Chapter 6) looks in more detail at judicial pedagogies of teachers and teaching. Notes 1 Dojan and others v. Germany (dec.), nos. 319/08 and 4 others, 13 September 2011. https://hudoc.echr.coe.int/eng?i=001-106382. 2 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509. 3 Project webpage: https://www.rel-edu.eu/project/ 4 Mansur Yalçın and others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-146487. 5 Angeleni v. Sweden (no. 10491/83, Commission decision of 3 December 1986, Decisions and Reports (DR) 51. https://hudoc.echr.coe.int/ eng?i=001-78932. 6 Papageorgiou and others v. Greece, nos. 4762/18, 6140/18, ECtHR (First section), 31. https://hudoc.echr.coe.int/eng?i=001-197254. 7 Grzelak v. Poland, no. 7710/02, 15 June 2010. https://hudoc.echr.coe.int/ eng?i=001-99384. 8 Folgerø and others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356. 9 Hasan and Eylem Zengin v. Türkiye, no. 1448/04, 9 October 2007. https:// hudoc.echr.coe.int/eng?i=001-82580. 10 Mansur Yalçın and Others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-146487. 11 Decision no. 373 of 19 September 2000.

References Alberts, W. (2007). Integrative religious education in Europe: A study-of-religions approach. De Gruyter, Inc.

Judicial assumptions about curriculum design  95 Allieu-Mary, N. (2007). Débats argumentés et laïcité En histoire-géographie. Pour une propédeutique à l’enseignement du fait religieux. [Argumentation debates in history-geography: Towards an Introduction to teaching facts about religion]. Spirale - Revue de recherches en éducation, 39, 107–123. DOI: 10.3406/ spira.2007.1258 Barnes, P. (2006). The misrepresentation of religion in modern British (religious) education, British Journal of Educational Studies, 54(4), 395–411. DOI: 10.1111/j.1467-8527.2006.00356.x Berkmann, B. (2022). Religious education before the ECtHR: The opt-out clause does not suffice anymore. British Journal of Religious Education, 44(4), 432–443. DOI: 10.1080/01416200.2022.2029732 Borghi, B., & M. Lucenti (2020). A textbook story. Ongoing research on the representation of Islam in school texts. Didattica Della Storia – Journal of Research and Didactics of History, 2(1), 42–72. DOI: 10.6092/issn.2704-8217/11906 Bråten, O. (2015). Three dimensions and four levels: Towards a methodology for comparative religious education. British Journal of Religious Education, 37(2), 138–152. DOI: 10.1080/01416200.2014.991275 Bruner, J. (1996). Folk pedagogy. In The culture of education (pp. 44–65). Harvard University Press. DOI: 10.2307/j.ctv136c601.5 Brzozowski, W. (2020). Papageorgiou and others v Greece: Exemption from a mandatory course in religion and the art of reading between the lines. Ecclesiastical Law Journal, 22(3), 355–360. DOI: 10.1017/S0956618X20000411 Chan, J., N. Fancourt, & L. Guilfoyle (2021). Argumentation in religious education in England: An analysis of locally agreed syllabuses. British Journal of Religious Education, 43(4), 458–471. DOI: 10.1080/01416200.2020.1734916 Cumper, P. (2011). Religious education in Europe in the twenty-first century. In M. Hunter-Henin (ed.). Law, religious freedoms and education in Europe (pp. 207– 228). Taylor & Francis. Fancourt, N. (2014). Insiders and outsiders: Task design in learning about religions. In I. Thompson (ed.), Designing tasks in secondary education: Enhancing subject understanding and student engagement (pp. 170–188). Routledge. Freathy, R, J. Doney, G. Freathy, K. Walshe, & G. Teece (2017). Pedagogical bricoleurs and bricolage researchers: The case of religious education. British Journal of Educational Studies, 65(4), 425–443. DOI: 10.1080/00071005.2017.1343454 Fuchs, M. E. (2009). Empirische und didaktische perspektiven bioethischen lernens im religionsunterricht [Empirical and didactical perspectives on bioethical learning in religious education]. Theo-Web. Zeitschrift Für Religionspädagogik, 8(1), 80–90. Gaudin, P. (2017). Neutrality and impartiality in public education: The French investment in philosophy, teaching about religions, and moral and civic education. British Journal of Religious Education, 39(1), 93–106. DOI: 10.1080/01416200. 2016.1218221 Gearon, L. (2013). On holy ground: The theory and practice of religious education. Routledge. Grimmitt, M. (1987). Religious education and human development: The relationship between studying religions and personal, social and moral education. McCrimmons.

96  Judicial assumptions about curriculum design Hagesæther, G., & S. Sandsmark (2006). Compulsory education in religion—The Norwegian case: An empirical evaluation of RE in Norwegian schools, with a focus on human rights. British Journal of Religious Education, 28(3), 275–287. DOI: 10.1080/01416200600811402 Heinz, M., K. Davison, & E. Keane (2018). ‘I will do it but religion is a very personal thing’: Teacher education applicants’ attitudes towards teaching religion in Ireland. European Journal of Teacher Education, 41(2), 232–245. DOI: 10.1080/02619768.2018.1426566 Holt, J. (2019). Beyond the big six religions: Expanding the boundaries in the teaching of religion and worldviews. University of Chester. Jackson, R. (1997). Religious education: An interpretive approach. Hodder & Stoughton. Jackson, R., J. Ipgrave, M. Hayward, P. Hopkins, N. Fancourt, M. Robbins, L. Francis, & U. McKenna (2010). Materials used to teach about world religions in schools in England. DCSF. Kay, W., & L. Smith (2000). Religious terms and attitudes in the classroom (Part 1). British Journal of Religious Education, 22(2), 81–90. DOI: 10.1080/ 0141620000220203 Kay, W., & L. Smith (2002). Classroom factors and attitude toward six world religions. British Journal of Religious Education, 24(2), 111–122. DOI: 10.1080/0141620020240205 Kaymakcan, R., & A. Hendek (2022). European Court of Human Rights’ judgements and compulsory religious education in Turkey. British Journal of Religious Education, 44(4), 444–454. DOI: 10.1080/01416200.2022.2045901 Leigh, I. (2012). Objective, critical and pluralistic? Religious education and human rights in the European public sphere. In L. Zucca & C. Ungureanu (eds.), Law, state and religion in the new Europe: Debates and dilemmas (pp. 192–214). Cambridge University Press. Liagkis, M. (2015). Religious education in Greece: A new curriculum, an old issue. British Journal of Religious Education, 37(2), 153–169. DOI: 10.1080/ 01416200.2014.944093 Lied, S. (2009). The Norwegian Christianity, Religion and Philosophy subject KRL in Strasbourg. British Journal of Religious Education, 31(3), 263–275. DOI: 10.1080/01416200903112474 Nesbitt, E. (2013). Ethnography, religious education, and The Fifth Cup. Religion & Education, 40(1), 5–19. DOI: 10.1080/15507394.2013.745364 OSCE/ODIHR (2007). Toledo guiding principles on teaching about religions and beliefs in public schools. OSCE/Office for Democratic Institutions and Human Rights. Peters, R. (1966). Ethics and education. Allen and Unwin. Porić, E., & A. Črnič (2021). Representations of Islam and Muslims in Slovenian primary school textbooks. Two Homelands, 53. DOI: 10.3986/dd.2021.1.08 Raynaud, P. (2019). La laïcité: Histoire d’une singularité française [Secularism: History of a French singularity]. Gallimard. Rothgangel, M., M. Jäggle, & T. Schlag (eds.) (2014) Religious education at schools in Europe. Part 1, Central Europe. V & R Unipress.

Judicial assumptions about curriculum design  97 School Curriculum and Assessment Authority (1994). Model syllabuses for religious education: Model 1: Living faiths today. School Curriculum and Assessment Authority. Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Shaw, M. (2018). New representations of religion and belief in schools. Religions, 9(11), 364. DOI: 10.3390/rel9110364 Skolverket (2022). Läroplan (Lgr22) för grundskolan samt för förskoleklassen och fritidshemmet – Religionskunskap. [Curriculum for primary school, pre-school class and after-school centre - Knowledge of religion]. https://www.skolverket. se/undervisning/grundskolan/laroplan-och-kursplaner-for-grundskolan Slotte, P. (2011). Securing freedom whilst enhancing competence: The “Knowledge about Christianity, religions and life stances” subject and the judgment of the European Court of Human Rights. Religion & Human Rights, 6(1), 41–73. https://doi.org.ezproxy-prd.bodleian.ox.ac.uk/10.1163/187103211X543644 Smith, D., G. Nixon, & J. Pearce (2018). Bad religion as false religion: An empirical study of UK religious education teachers’ essentialist religious discourse. Religions, 9(11), 361. DOI: 10.3390/rel9110361 Smith, L., & W. Kay (2000). Religious terms and attitudes in the classroom (Part 2). British Journal of Religious Education, 22(3), 181–191. DOI: 10.1080/ 0141620000220306 Thobani, S. (2017). The religious–secular interface and representations of Islam in phenomenological religious education. Oxford Review of Education, 43(5), 612– 625. DOI: 10.1080/03054985.2017.1352355 Türkmen, B. (2009). A transformed Kemalist Islam or a new Islamic civic morality? A study of “Religious culture and morality” textbooks in the Turkish high school curricula. Comparative Studies of South Asia, Africa and the Middle East, 29(3), 381–397. DOI: 10.1215/1089201x-2009-026 UK Government (1988). Education Reform Act. HMSO. Weisse, W. (2013). Dialogical ‘religious education for all’ in Hamburg. Pedagogiek, 33(2), 166–178. https://dspace.library.uu.nl/handle/1874/285757 Wright, A. (2015). Religious education and critical realism: Knowledge, reality and religious literacy. Routledge.

6 Judicial assumptions about teachers and teaching

Appeals to the ECtHR have not only focused on the curriculum or content of lessons but also on the processes of teaching and learning. To be precise, under the ECHR, teaching is mentioned, but not learning (see Chapter 2), so the former is this chapter’s focus. However, the two are entwined and can be termed ‘pedagogy’ in a narrow sense, particularly when used in contradistinction to curriculum and assessment. In this book, as noted earlier, ‘pedagogy’ is used more widely, following Bruner (1996), to describe broader educational processes. The distinction matters since what teachers do or say does not always lead to learning, and conversely, it is possible to learn without a teacher or to teach oneself: the everyday notions of learning from experience, or from practice capture these. The complex inter-relationship of teaching and learning has long been recognised in educational thought and research, notably from Vygotsky (1986) onwards. Under ECHR, neither A9 nor A2P1 provides a right of appeal simply because appellants object to the teacher or the teaching methods. Teachers do not have to respect pupils’ or parents’ religious or philosophical convictions about the manner of teaching, for example, whether pupils should work in groups, or sit assessments. The main exception, as discussed previously in Chapter 4, is in relation to corporal punishment, in Campbell and Cosans v. UK.1 In this case, the court had to define education, which it contrasted with teaching: The education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development. (Paragraph 33) The parents in Campbell and Cosans objected to what could be termed an educational strategy of discipline, but which was impliedly not part of teaching (see Chapter 4). Indeed, the dissenting judgment feared that the case DOI: 10.4324/9781003393276-6

Judicial assumptions about teachers and teaching  99 might open the door to complaints about a range of other issues such as ability setting, private schooling or examinations. Subsequent cases before ECtHR that address this issue are generally linked to other aspects of school life than the curriculum itself, so the challenge to human rights is about unintended consequences. There are three broad issues to consider here: teaching as vocation or profession; teacher agency and curriculum; teacher talk. Teaching as vocation or profession First, one important consideration in defining teaching is whether the teacher is understood as the efficient transmitter or inculcator of knowledge in a purely professional role, or as an embodied exemplar of a set of values and beliefs, more vocationally (Everington 2016; van der Want et al. 2009). In Sfard’s (1998) terms, this is whether the teacher simply transmits knowledge which the pupils acquire, or whether the teacher must be an active participant themselves in a religious or other community, for example, a church, or so as to model participation. This distinction will often parallel the distinction between envisaging the subject solely as an academic pursuit, and therefore to be effectively delivered, or as a form of moral or spiritual development, in which case the teacher’s own religious commitments and personal life may be as or more important (Mulder 2021). Indeed, in states that authorise faith schools or confessional approaches to the subject in state schools, teachers – especially teachers of religious education – may be required actively to belong to a religious tradition, and conversely not act in a manner that contravenes that tradition’s religious or ethical teachings. For example, “[u]nder the terms of the Concordat between the Holy See and Spain, Catholic RE teachers must obtain a declaration of suitability prior to their appointment by the competent [episcopal] authority” (Gas-Aixendri 2022, p. 420), because “the task that the Catholic Church entrusts to the teacher of religion not only requires pedagogical skills in order to teach the dogmatic content, but also requires a testimony of life consistent with these teachings” (p. 428), and this is common elsewhere, in Poland (Mąkosa 2015), or for Catholic schools in England (García Oliva & Ginn 2018). These demands are not placed on, for example, mathematics or foreign language teachers: neither accountants and statisticians, nor the Academie francaise and Goethe-Institut, select or scrutinise these teachers. More broadly, many teachers’ motivations are not found in the narrow role of transmitter of information, but in the wider goals and aims of the care and transformation of students’ lives, and of society. For example, an international comparison of 12 countries, including nine in Europe, argued that

100  Judicial assumptions about teachers and teaching People who choose teaching as a career are motivated by a complex interaction of factors embedded within communities and cultural expectations but seem generally to embrace a desire to undertake meaningful work that makes for a better, more equitable society. (Watt, Richardson & Smith 2017) Most teachers have a vocational intent, driven by axiological concerns, which is played out within their professional role and partly at least through subject teaching, but the line between these two elements may be more porous in some settings and subjects. Many religious education teachers of any type seek to be models of care and compassion, or creators of space for dialogue (Everington et al. 2011; van der Want et al. 2009). In more confessional approaches, teachers’ own faith motivations may be aligned transparently with their professional role, and Coll (2009) shows from research in Scotland how such alignments can vary according to different approaches to Catholic school leadership, and indeed school leaders’ own motivations may also be widely drawn in these settings (Fincham 2022; Grace 2002). One important strand of research on religious education teachers concerns the extent to which they could or should reveal aspects of their personal lives to pupils, such as their holiday experiences, marital status, family life or political views, and, notably here, their own religious or philosophical convictions under a non-confessional pluralistic model (Everington 2012; Nelson & Yang 2022). For teachers in general, self-disclosure has been found to be valuable to some degree (e.g., Cayanus & Martin 2008). For teachers’ religious beliefs, an obvious reaction might be to consider them inappropriately evangelising or indoctrinatory (Gates 1978), but some have argued that the process of sharing the teacher’s own beliefs could model how pupils can share their own beliefs with each other openly; it would be paradoxical if the subject were intended to enable pupils to share their views in an open, unproselytising manner, but the only adult in the room was prohibited from showing pupils how this could be achieved (Fancourt 2007; Mulder 2021). There are however some particular challenges for certain teachers. It can be a nuanced or demanding process for teachers who are themselves members of minority religions (Everington 2014: Vince 2019, 2020), and teachers who are working amid a switch from confessional to pluralistic approaches can also find the new expectations demanding and hard to navigate, for example, in Cyprus (Zembylas et al. 2019) or Germany (Fabricius et al. 2022). Where once open confessionalism was expected, fresh expectations mean that this is put into doubt, and teachers find themselves uncertain as to what they should and could reveal.

Judicial assumptions about teachers and teaching  101 Teacher agency and curriculum The deployment of personal knowledge can itself be situated within a wider question, which is whether the teacher’s role is simply to deliver a prescribed curriculum, whomsoever sets it, school, district or state, or whether they have professional agency in choosing what and how they teach. Biesta, Priestley and Robinson (2015) commented, There is an ongoing tension within educational policy worldwide between countries that seek to reduce the opportunities for teachers to exert judgement and control over their own work, and those who seek to promote it. Some see teacher agency as a weakness within the operation of schools and seek to replace it with evidence-based and data-driven approaches, whereas others argue that because of the complexities of situated educational practices, teacher agency is an indispensable element of good and meaningful education. (p. 624) This tension is true both for teaching in general, and especially for religious education, because there can be constitutional and human rights obligations on the subject that severely limit agency, but the subject simultaneously includes controversial issues that require contextual handling (Hammer & Lenz 2022), and classroom factors such as pupils’ religious backgrounds which must be considered (Zilliacus 2013). This tension is independent of the nature of the prescribed religious education, whether it be confessional or pluralistic. Confessional religious education may be heavily prescribed by the relevant educational authorities, such as a diocesan school board, or it may be loosely structured, giving freedom to the schools and teachers to decide appropriately for their context (see Fabricius et al. 2022). For example, Mąkosa (2015) shows how religion education in Poland is shaped by the Vatican’s guidance that Religious instruction in schools is developed in diverse scholastic contexts, while always maintaining its proper character, to acquire different emphases. These depend on legal and organisational circumstances, educational theories, and the personal outlook of individual teachers and students, as well as the relationship between religious instruction in the schools and family or parish catechesis. (Congregation for the Clergy, 2002, p. 74) In this example, a supranational organisation must recognise different national and contextual factors at play.

102  Judicial assumptions about teachers and teaching Pluralistic religious education may also be highly prescribed by the state, whether at a local or national level, or may be more fluid, allowing for more agency. For example, the syllabus content may be so extensive that teachers have little choice but to follow it or so vague that teachers have considerable choice; there may be a prescribed textbook that teachers are more or less obliged to use, or they can choose from a range of resources (see Broberg 2020, on the Swedish situation). For example, in Türkiye, official textbooks have been written by the government, which thereby responded to the adverse decisions in Zengin by rewriting them, and then re-reviewing them after Yalçın (see Kaymakcan & Hendek 2022); this approach suggests strong state direction and diminished agency. Further, Jackson et al. (2010) found that in England for many subject coordinators or department heads, the use of textbooks was linked to teachers’ subject expertise, and one head of department commented: The non-specialists felt safer with textbooks, which the kids didn’t like. They kept going from week to week by going from one page of the book to the next. (Jackson et al. 2010, p. 152) She therefore sought to reduce the use of textbooks, or at least buy textbooks that provided worthwhile tasks for students. Teacher talk These decisions raise questions about the teacher’s voice in classrooms, and perhaps the most obvious means of teaching is through talk. Teachers’ utterances will not only be informational and organisational, but they will also set the tone for what occurs in a lesson. Its instructional role in religious education has been the focus of research internationally (Rymarz 2013). Studies have also pointed out how teachers can err, by reifying religions or being inadvertently offensive: Osbeck and Lied (2012) show how a Swedish teacher adopted an offensive joke made by students about the similarity between the phrases torah sc/roll and toilet roll – a play on tora/toa in Swedish. Teachers can also close down open discussion by inferring that there are correct answers to their questions, i.e., by inadvertently adopting closed questioning (Schihalejev 2009). Their representations can be considered distorted by religiously committed students, and Moulin (2011) quotes a 15-year-old Christian pupil who felt that Teachers always start with the boring points and always start with the rules. But you are thinking “but if I were telling someone about it,

Judicial assumptions about teachers and teaching  103 I wouldn’t start that way”. They start in the wrong place; they start with the rules of religion. (p. 316) Teacher talk is also one facet of classroom talk more generally, including pupil discussion and dialogue, which are considered in relation to learning in the next chapter. However, in a dialogical setting, the teacher must be a facilitator or moderator, and various studies have considered the optimal conditions required, for example, in creating a “safe” space or forum (Fancourt 2009; Flensner & von der Lippe 2019). One challenge is that in monocultural classrooms, teacher talk tends to be more factual and informational when covering religions or beliefs with which students are unfamiliar, for example, Buddhism, and more critical and academically demanding when they have some familiarity with it, notably Christianity (Eke, Lee & Clough 2005). The cases These three issues (teaching as vocation, agency and curriculum, and teacher talk) are here considered in relation to two new cases, Dahlab v. Switzerland,2 in 2001, under A9, concerning a teacher’s right to wear hijab in school, and Fernández Martínez v. Spain,3 in 2014, under A8, the right to a private life (rather than under A9 or A2P1), and which involves employment law as much as education law (Gas-Aixendri 2022; Martínez-Torrón 2017). Both are cases brought by teachers, which is also why they have been selected. Professionalism and classroom questions: Dahlab v. Switzerland

Lucia Dahlab worked as a primary school teacher in Geneva for several years before converting to Islam and, as a result, started wearing hijab in school. The school authorities demanded that she stop wearing it on the basis that public employees had to exemplify state neutrality on issues of religion, but she refused on grounds of religious freedom. The authorities obtained a court order on the basis that this breached a requirement for education to be neutral, so she pursued the matter unsuccessfully through the Swiss appeal courts and so onto the ECtHR, where she was also unsuccessful. The case falls within a wider European debate on Muslim women’s clothing (e.g., Matwijkiw & Oriolo 2021; McGoldrick 2009). ECtHR held that “[t] he wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran” (Section 1). However, important aspects of the case concerned the role of the teacher and the nature of teacher talk. It was heard by

104  Judicial assumptions about teachers and teaching Christos Rosakis (Greece), András Baka (Hungary), Luzius Wildhaber (Switzerland), Giovanni Bonello (Malta), Viera Strážnická (Slovakia), Marc Fischbach (Luxembourg) and Margarita Tsatsa-Nikolovska (Macedonia/ North Macedonia). On the question of vocation and professionalism, Dahlab appears initially to support the notion of teaching as a purely professional role. The Swiss Federal Court, for instance, identified that “[w]hat is in issue, therefore, is the wearing of a powerful religious symbol by a teacher at a State school in the performance of her professional duties” (Section A). On the question of the competence of her classroom practice, it was uncontested that “her teaching, which was secular in nature, has never given rise to the slightest problem or to any complaints from pupils or parents” (Section 1). Thus, recalling the distinction above in Campbell and Cosans between education and teaching, her teaching, in the narrow sense of the transmission of knowledge and intellectual development, was not in question. However, the educational implications, as the transmission of beliefs, culture and other values, was in question, and this raised two vocational issues about the teacher as the embodiment of a set of secular values. First, the ECtHR referred with approval to the Federal Court’s decision that The appellant participates in the exercise of educational authority and personifies school in the eyes of her pupils; as a result, even if other teachers from the same school display different religious views, the manifestation of such an image of oneself appears hard to reconcile with the principle of non-identification with a particular faith in so far as her status as a civil servant means that the State must assume responsibility for her conduct. (Section 1) This argues from the assumption that the teacher personifies the school: to wear a symbol as a teacher is impliedly to teach it on the State’s behalf. While the Court seemed to accept that teachers might display their religiosity, since “other teachers from the same school [could] display different religious views” and so there might hypothetically be different personal religious symbols evident (no examples were given), there was a second more specific argument. The hijab itself was condemned as being particularly problematic, …seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of

Judicial assumptions about teachers and teaching  105 tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils. (Section 1) This argument meant that even if some religious symbols were permitted, hijab would still be banned because it was incompatible with the four democratic values outlined, and which teachers “must convey”. A pedagogical definition of what conveying values means is not provided but seems impliedly bound up in teachers’ dress. These two lines of argument together point to a strong view of the vocational nature of teaching, in that it is more than the job of transmitting knowledge and is bound up in one’s physical demeanour and appearance. The ECtHR also considered the nature of teacher talk. As noted above, there was no question that Dahlab had taught her lessons in a proselytising manner, but it considered that she would inevitably be obliged to at some point: Admittedly, she is not accused of proselytising or even of talking to her pupils about her beliefs. However, the appellant can scarcely avoid the questions which her pupils have not missed the opportunity to ask. It would seem somewhat awkward for her to reply by citing aesthetic considerations or sensitivity to the cold – the approach she claims to have adopted to date, according to the file – because the children will realise that she is evading the issue. It is therefore difficult for her to reply without stating her beliefs. (Section 1) There are several pedagogical assumptions here. Much of teaching consists of evading or countering questions put by pupils on all manner of issues that teachers do not wish to divulge, for example, age, sexuality (Gray 2013), marital status or politics (Journell 2016). There is no reason to suppose that she had not become adept at this. If she had succeeded so far by constant recourse to aesthetics or temperature, then students would potentially become used to and accepting of these answers. Indeed, they would realise that she was avoiding answering them, and they would stop asking. Put differently, there is no obligation on her to provide an answer, any more than a teacher is obliged to provide answers to questions about marital status, sexuality or politics. On these issues too, pupils will realise that their teacher is constantly evading the issue, and coming to understand a teacher’s silence is as much a part of the educational process as their talk. Overall, Dahlab shows some striking assumptions about teachers’ roles, professionalism and language.

106  Judicial assumptions about teachers and teaching Vocation, loyalty and agency: Fernández Martínez v. Spain

Fernández Martínez in 2014 contrasts with Dahlab because it is a mirror image of the situation. As a teacher, José Fernández Martínez wanted his private life and beliefs to be treated separately from his professional persona, but the school argued that his private life affected his competence as a teacher, whereas Dahlab wanted her private life to be part of her professional persona but the school did not. The case was heard by a Grand Chamber: Dean Spielmann (Luxembourg – president); Guido Raimondi (Italy); Mark Villiger (Liechtenstein); Isabelle Berro-Lefèvre (Monaco); Ján Šikuta (Slovakia); George Nicolaou (Cyprus); András Sajó (Hungary); Ann Power-Forde (Ireland); Işil Karakaş (Türkiye); Angelika Nußberger (Germany); André Potocki (France); Paul Lemmens (Belgium); Helena Jäderblom (Sweden); Valeriu Griţco (Moldova); Faris Vehabović (Bosnia and Herzegovina); Dmitry Dedov (Russia); and Alejandro Saiz Arnaiz (Spain). Fernández Martínez taught Catholic religion and ethics in a State secondary school in Cieza, Spain. He had been ordained as a priest in 1961 but had applied for a dispensation from his vow of celibacy in 1984; although there was no response, he had married (in a civil ceremony) and subsequently had five children. From 1991 onwards, he started working as a Catholic education teacher, and this post required annual revalidation by the local bishop under the terms of a national agreement between Spain and the Vatican. It was renewed five times. In 1996, a regional newspaper published an article on the “Movement for Optional Celibacy of Priests” (MOCEOP) that identified him as one of those advocating optional celibacy and a more democratic church structure. This caught the attention of the church authorities, so in 1997, he was released from his vow of celibacy by the Vatican and thereby was no longer a cleric. However, his contract of employment was also terminated because of the perceived scandal: When [his] situation became a matter of public and common knowledge, it was no longer possible for the bishop of the diocese to make use of the powers conferred upon him…accordingly, the document authorising [him] to teach Catholic religion and ethics was not signed, with effect from the current academic year. [His] personal and employment situation has also been taken into account, since [he] is entitled to receive unemployment benefit for at least a year and a half. (Diocesan memorandum, quoted in Paragraph 18) Initially unemployed, he then worked in a museum until 2003 when he retired. He started proceedings in the local administrative court in 2000, claiming back pay and pension rights; this was dismissed. He then brought an action

Judicial assumptions about teachers and teaching  107 for unfair dismissal before the Murcia Employment Tribunal, which upheld his appeal and ordered his reinstatement. It considered that he had been discriminated against because of his marital status and membership of ­MOCEOP, which the court treated as a quasi-union. However, the National Ministry of Education, the regional educational authority for Murcia, and the Diocese of Murcia appealed to the High Court, which allowed their appeal: …The teaching [of Catholic religion and ethics] is associated with the doctrine of the Catholic religion … Accordingly, the bond created [­between the teacher and the bishop] is based on trust…. It is not a neutral legal relationship, such as that which exists between citizens in general and public authorities. It falls on the borderline between the purely ecclesiastical dimension and a nascent employment relationship. (Murcia High Court of Justice Judgment, 26 February 2001, quoted at Paragraph 28) (redactions from ECtHR judgment) Fernández Martínez had, it held, broken that trust. He then appealed to the National Constitutional Court on the grounds of freedom from discrimination, the right to a private and family life, the right to equality, freedom of association and freedom of expression. This court rejected his appeal, giving different reasons for the different rights, but notably because under Spanish law it was balancing his right to freedom of religion against the church’s collective right to the same freedom. It referred to an earlier judgment: …it would be quite simply unreasonable, as regards the teaching of religion in schools, if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process, on the basis of guaranteeing the right to religious freedom in its external and collective dimension. (Paragraph 43) Having been unsuccessful in Spain, he took the matter to Strasbourg, under Article 8 (respect for private and family life), but also under Articles 9 (freedom of religion and belief), 10 (freedom of expression) and 14 (prohibition of discrimination). At the initial hearing before the Chamber, it was rejected, so went to the Grand Chamber, which also rejected it, by nine votes to eight on Article 8 alone, and 14 votes to 3 on the other articles. On Article 8, the dissenting judges were Spielmann, Sajó, Karakaş Lemmens, Jäderblom, Vehabović, Dedov and Saiz Arnaiz. On the other Articles, the dissenters were Spielmann, Sajó and Lemmens. The case entangles a complex set of issues, but it relied in part on several claims about the vocation of teaching, specifically teaching confessional religious education, as well as the related question of teacher agency. This

108  Judicial assumptions about teachers and teaching decision is likely to extend to other states with similar provisions, for example, Poland (Czelny 2015). On vocation, the ECtHR cited the Spanish High Court’s decision: Since the object of religious instruction is the transmission not only of specific knowledge but of the religious faith of the person who teaches it, this will in all probability imply a series of requirements that transcend the limits of an organisation pursuing ideological aims, beginning with the implicit requirement that persons who seek to transmit a religious faith must likewise profess that faith. (Paragraph 43) This echoes the discussion in Chapter 4 on educational aims; religious education specifically is considered more than transmission of knowledge, though this is not defined, except insofar as the teacher is required to profess that faith to transmit it, in a circular argument. To profess a faith is usually associated with an open declaration of personal allegiance, so the court held a position that is the opposite of Dahlab as far as religious convictions are concerned, in which open profession (through wearing symbols) was the challenge. This view may in part reflect the fact that teaching is an element in Article 9, as noted in Chapter 2: (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his/her religion or belief and freedom, either alone or in community with others and in public or private, to manifest his/her religion or belief, in worship, teaching, practice and observance. (ECtHR undated, emphasis added) If teaching is considered as one aspect of the community’s right to manifest itself in public, then adherence to that community matters. A further issue however was on the nature and strength of this conviction, notably around the issues of loyalty, which raised the question of agency. Fernández Martínez never stopped being a Catholic and an active member of the church, even if he was a strong internal critic. He became neither an atheist, evangelical, nor Muslim, but simply campaigned for reform. On this, In the Court’s view, it is not unreasonable for a Church or religious community to expect particular loyalty of religious-education teachers insofar as they may be regarded as its representatives. The existence of a discrepancy between the ideas that have to be taught and the teacher’s personal beliefs may raise an issue of credibility if the teacher actively and publicly campaigns against the ideas in question… Thus, in the present case the

Judicial assumptions about teachers and teaching  109 problem lies in the fact that the applicant could be understood to have been campaigning in favour of his way of life to bring about a change in the Church’s rules, and in his open criticism of those rules. (Paragraph 136) Beyond transparently being a member of the church, this obligation of loyalty meant that any indication of personal disagreement with any aspect of the church or its teaching was inappropriate: …the heightened duty of loyalty is justified by the fact that, in order to remain credible, religion must be taught by a person whose way of life and public statements are not flagrantly at odds with the religion in question, especially where the religion is supposed to govern the private life and personal beliefs of its followers. (Paragraph 137) This negates any professional agency; indeed, it is arguably a negation of personal agency in that he could not have publicly campaigned for MOCEOP at all. Further, it did not matter if his teaching was otherwise faultless: …the sole fact that there is no evidence to suggest that the applicant, in his class, taught anything incompatible with the Catholic Church’s doctrine does not suffice for it to be concluded that he fulfilled his heightened duty of loyalty. (Paragraph 137) Fernández Martínez’s teacher talk was therefore not in dispute; even if it was appropriate, it was not enough to avoid the obligation for ecclesiastical loyalty, as a living witness to the community. Conclusion This chapter has considered how the ECtHR has expressed its pedagogical assumptions about the role and nature of teaching. These were in relation to three important elements: the vocational nature of teaching; the role of teacher agency in curriculum or pedagogical decision-making; teacher talk. Two cases, Dahlab and Fernández Martínez, reveal how teacher’s personal, religious and professional lives may be at stake. In both cases, the teachers considered that they could fulfil their professional obligations satisfactorily, and indeed there were no complaints from parents or pupils. However, their private religious beliefs were considered problematic, because they were too noticeable or likely to be so, whether through wearing hijab or as a known voice of reform. Both cases reveal a view of teaching that goes far beyond

110  Judicial assumptions about teachers and teaching the transmission of knowledge, considering it also to be a values-laden and values-driven profession. A wider professional requirement to represent a wider set of values stands, for one, democratic values, for the other, obedience to the church. In both, teacher agency is put problematised: for Fernández Martínez, its value is in question from the ecclesiastical virtue of loyalty, rather than from the evidence-based agenda that Biesta, Priestley and Robinson (2015) identify. For Dahlab, it is in doubt because the court considered that the situation would demand a breach of these values. These cases also shed light on the models and metaphors from Bruner (1996) and Sfard (1998). They generally reveal a participative understanding of teaching, which is particularly strong in Fernández Martínez because the Court held that he could not properly model life in the church community even though pupils acquired accurate knowledge from him. Even in Dahlab, the argument is that a symbol’s presence would be too encouraging for pupils to adopt the associated Muslim beliefs, and the Court held that she should be modelling democratic values instead. From a Brunerian perspective, the Court neither considers that the students have thoughts of their own or can reason for themselves, under his third and fourth models, but simply sees the issue as one of the values that a teacher presents to empty unknowing pupils. The next question therefore is how these discussions interact with the Court’s pedagogy of learning. Notes 1 Campbell and Cosans v. the United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 2 ECtHR Dahlab v. Switzerland (2001) Application no. 42393/98. https://­ hudoc.echr.coe.int/eng?i=001-22643. 3 Fernández Martínez v. Spain 56030/07 – [GC] [2014] ECHR 615, [2014] ECHR 886. https://hudoc.echr.coe.int/eng?i=001-145068.

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Judicial assumptions about teachers and teaching  113 Osbeck, C., & S. Lied (2012). Hegemonic speech genres of classrooms and their importance for RE learning. British Journal of Religious Education, 34(2), 155– 168. DOI: 10.1080/01416200.2011.628194 Rymarz, R. (2013). Direct instruction as a pedagogical tool in religious education. British Journal of Religious Education, 35(3), 326–341. DOI: 10.1080/ 01416200.2013.781992 Schihalejev, O. (2009). Dialogue in religious education lessons – Possibilities and hindrances in the Estonian context. British Journal of Religious Education, 31(3), 277–288. DOI: 10.1080/01416200903209106 Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 van der Want, A., C. Bakker, I. ter Avest, & J. Everington (eds.). (2009). Teachers responding to religious diversity in Europe: Researching biography and pedagogy. Waxmann. Vince, M. (2019). “I feel as though I’m doing the job of the Imam for them”: Considering ‘tactical’ Muslim leadership through the case of ‘Muslim RE teachers’. Religions, 10(7), 420. DOI: 10.3390/rel10070420 Vince, M. (2020). ‘Neutrality’, Muslimness and the whiteness of RE professionalism. Journal of religious education, 68(3), 371–383. https://doi.org.ezproxy-prd. bodleian.ox.ac.uk/10.1007/s40839-020-00114-6 Vygotsky. L. (1986). Thought and language. MIT Press. Watt, H., Richardson, P., & Smith, K. (2017). Why Teach?: How teachers’ motivations matter around the world. In H. Watt, P. Richardson, & K. Smith (eds.), Global perspectives on teacher motivation (pp. xv–xvi). Cambridge University Press. DOI: 10.1017/9781316225202.001 Zembylas, M., L. Loukaidis, M. Antoniou, & P. Antoniou (2019). Religious doctrines and critical religious education: Teachers’ epistemic switching in a confessional setting. British Journal of Religious Education, 41(3), 286–298. DOI: 10.1080/01416200.2018.1484694 Zilliacus, H. (2013). Addressing religious plurality – A teacher perspective on minority religion and secular ethics education. Intercultural Education, 24(6), 507– 520. DOI: 10.1080/14675986.2013.867761

7 Judicial assumptions about learners and learning

The previous chapter (Chapter 6) focused on teaching, and this chapter inevitably shifts attention to its counterpart – learning. As noted previously, these two can be termed ‘pedagogy’ in a narrow sense, notably when used in contradistinction to curriculum and assessment. Here, “judicial pedagogy” is defined widely as including curriculum and assessment. However, both this chapter and the next, on assessment, move away from the intentions and plans of governments, schools and teachers and onto students, their experiences and their work. Unlike teaching, learning is mentioned explicitly neither in A9 nor A2P1, but it is a vital consideration. The negative freedom, i.e., not being educated according to a different religion or belief than one’s own (or one’s parents), means that how students learn is open to question – and therefore to litigation. If there is no learning, or risk of it, it is hard to see what right is being infringed. In Dojan v. Germany1 (see Chapter 1), the parents were anxious that their children would adopt what they considered to be sexually inappropriate behaviour and lax morals because of the school’s sex education lessons and adopt unchristian practices from participating in Fastnacht: the case arose because of their fears about what would be learnt. Learning can be viewed from four aspects: students’ mental development, which considers theories of age-related intellectual capacity, cognitive progression and moral reasoning; individual and group learning, which considers arguments about the educational value of pupils working together or on their own; classroom talk, which is a specific example of group learning and is the inevitable sequel to the previous chapter’s discussion of teacher talk; image, ritual and symbol in schools, which explores the role of displayed objects and artefacts, and thus what and how students learn from them – put differently, how these objects “teach” in and of themselves. Once these have been outlined, three cases will be considered: Lautsi v Italy2, Perovy v Russia3, and Osmanoğlu and Kocabaş v Switzerland4.

DOI: 10.4324/9781003393276-7

Judicial assumptions about learners and learning  115 Students’ mental development The first consideration is whether there is an identifiable process of students’ mental development, in that students’ cognition matures as a result of their natural overall development rather than as a result of schooling. While much learning is through teaching, much is considered simply to be developmental, or rather, it is limited by general intellectual capacity at a particular age: one does not generally expect the same academic reasoning from a five-year-old as a fifteen-year-old. Developmental theories in religious education are in large part indebted to more generic principles of cognitive development. The most influential are Piaget’s (1926, 1929), who argued for four main stages of mental development: the sensorimotor stage, from birth to 2 years; the preoperational stage, from 2 to 7 years, when children can hold ideas, but cannot reason logically, and think egocentrically; the concrete operational phase, from 7 to 11, when children start to reason logically; the formal operational phase, from 11 to 16, when they can reason logically and abstractly, applying universal, not egocentric, principles. This schema is not without criticism, and Piaget’s ideas and approach have unsurprisingly been subject to further research and scrutiny (Brown, Modgil & Modgil 2006). It here exemplifies an empirical model of the common assumption that children have different mental capacities at various stages of schooling. In Dojan, these capacities are also linked to adolescence, in considering what is age-appropriate in sex education. Models of mental development have been influential on religious education in two ways. First was the direct application of Piaget’s model to religious education. For instance, Goldman (1964) argued that the presentation of certain religious narratives and doctrines, particularly non-literal or symbolic elements, was simply inappropriate in primary education. Relatedly, developmental models of religiosity were drawn up (Fowler, Nipkow & Schweitzer 1992) suggesting that children’s conceptions of God were developmental, from a highly personal anthropomorphic figure to a more abstract deity. Focusing on early secondary schooling, Kay, Francis and Gibson (1996) considered if rejection of religion was inevitable in the formal operational phase, finding that it was not. These investigations often brought psychology, education and theology together. The second is through the application of developmental models of ethical thinking. Piaget (1932) himself outlined a theory of moral judgement, arguing that children’s morality is based on interactions with their peers, not from adults, shifting from a sense of rule-observance to a personal rational approach, itself drawn from Kant’s contrast of heteronomy and autonomy. Kohlberg (1984) developed this approach, arguing for staged development towards universalistic ethical reasoning, though he was critiqued for imposing too

116  Judicial assumptions about learners and learning narrow or too gendered a view of ethics (e.g., Gibbs 2003; Gilligan 1982). These models brought psychology, education and ethics into conversation. The direct influence of these developmental models of education has waned in recent years, but their legacy should be recognised (Francis 2020), not least in focusing on age-appropriate expectations, particularly within confessional approaches (Nipkow 2006). Individual and group learning One significant question is about the role and function of learning together with other students. Schools are organised as social institutions, though home-schooling has increased in popularity in recent years – particularly by those in religious minorities. Indeed, arguments for faith-based schools emphasise the educational value of this communal experience, for example, in France (Ferrara 2018), Sweden (Mohme 2017) and England (Pring 2018). Others emphasise the value of mixing pupils from diverse backgrounds, for example, in Northern Ireland (McGlynn et al. 2004). Schools however can also be organised by attainment, typically at the secondary phase. Within schools, classes are the standard educational grouping, which is typically by age, though can also be by attainment, through setting or streaming. There is scant research on setting or streaming and religious education, though Tirri (2010) considered that there was a connection between general academic giftedness and ethical reasoning. A classroom requires a degree of social interaction for learning to occur. Some learning will be conducted solitarily by students individually, and indeed, students working silently at their desks, possibly from a textbook, is a traditional image of schooling. Homework is another example. Generally, a classroom setting is the norm: being with others and learning with them, is integral to schooling. Indeed, collective working is frequently encouraged, whether group work or role play (Kienstra, van Dijk-Groeneboer & Boelens 2018). The Catholic education scholar, Roebbens (2012) strongly argues, when considering special educational needs, for the educational value of living and learning with all others: The dignity of the other in his uniqueness and otherness is not only an inalienable human right, but also the ground on which human beings can communicate, can live and learn together. We become learners through the encounter. We receive our identities in the encounter. The experience of otherness interrogates learners mutually about their autonomy to, their relationship with and their knowledge about each other – about what they have to offer to one another. (Roebben 2012, p. 1175)

Judicial assumptions about learners and learning  117 This is an argument not simply for pupils’ interaction, but for ‘being with’ others and learning from and through their alterity. However, it demands social skills to participate, which have been challenged in case law on the rights of students with a disability to inclusion in mainstream schooling, under A2P1. In Dupin v. France,5 the ECtHR considered that when Dupin, an autistic student, attended a mainstream school, He had not had much contact with the other pupils and did not speak, write or read. Those observations suggested that he was not capable of assuming the constraints and minimum requirements of conduct for life in a mainstream school. (Paragraph 30) It therefore concluded that the state was entitled to provide specialist nonmainstream education, rather than having to provide more support within a mainstream school. The implications of this judgment for inclusive education are not the focus here, but it recognises both the intrinsic value of learning together and the cognitive and social demands this makes on students. Classroom dialogue The most obvious pedagogical strategy is talk, and if teacher talk was considered in the previous chapter (Chapter 6), this needs to be considered alongside other kinds of classroom talk, such as dialogue or discussion. Classroom dialogue has received considerable attention in pedagogical research on religious education because it aligns with the demands for curricular pluralism, particularly when students hold different religious and philosophical beliefs. The vision of students talking about their own beliefs openly, and thereby informing each other and developing respect and tolerance for each other, has been beguiling in the imaginaries of pluralistic religious education; Zucca (2011) argued for the “classroom as a tolerance lab [which] can perform the vital role of bridging socio-cultural gaps by exposing people to different cultures within a common environment” (p. 41). Indeed, in Folgerø v. Norway,6 the ECtHR approved this approach: The intention was that the school should not be an arena for preaching or missionary activities but a meeting place for different religious and philosophical convictions where pupils could gain knowledge about their respective thoughts and traditions… In the view of the Court, these intentions were clearly consonant with the principles of pluralism and objectivity embodied in [A2P1]. (Paragraph 88)

118  Judicial assumptions about learners and learning Empirical research has also explored this theme. The REDCo project, namely “Religion in Education: Dialogue or Conflict?”, expressly identified dialogue in its title, and explored the nature of and challenges to its development in different European classroom settings, funded under EU’s Horizon programme (ter Avest et al. 2009; also, Flensner 2018, Wielzen & ter Avest 2017). One obvious challenge is that few classrooms will have a representative mix of different beliefs. Large cities may contain several beliefs, but remoter, rural areas are potentially more monocultural. For instance, Johannessen (2009) considered the challenge of ‘sameness’ in Rogaland, an isolated Norwegian island, when introducing pluralistic religious education: a curriculum drawn up in Oslo may not transfer straightforwardly to remoter localities. Even in multicultural cities, small schools may essentially serve one particular minority within a locality, and Ipgrave, Miller and Hopkins (2010) describe some Muslim-majority schools in English cities, showing the different organisational responses to Muslim identities. While there are sound educational reasons for a pluralistic, dialogical model of religious education (Fancourt 2009), the actual nature of classroom dialogue will vary considerably in response to the number and nature of the students’ voices and the local religious context (Fancourt & Ipgrave 2020). The term dialogue is also used metaphorically for students encountering different religions or worldviews in the curriculum; for example, as “a dialogue with difference” (O’Grady 2019, p. 1). Dialogue takes on a hermeneutical hue, in that all engagement with differences of religion or beliefs, whether in person or through text, is included, over and above, but embedded in, classroom talk. Image, ritual and symbol in the classroom One important dimension of religious education, and education more generally, is the use of images, rituals and symbols in the classroom. It is particularly noted within confessional religious education, for example, the use of artwork (Gellel 2018; Kuščević & Brajčić 2020), prayer (Kohn 2019) or mediation (Keating 2017). These elements are often considered part of students’ spiritual development (McMurtary 2007), and Keating (2017) highlighted their “spiritual fruits” (p. 49). Further, more generic models of experiential learning have also encouraged the use of pictures or images as a visual form of learning, or the use of role play as a kinaesthetic form of learning. Confessional approaches find support in broader pedagogical strategies, and thus Gellel (2018) argues for a Catholic spiritual literacy that is theoretically grounded in a socio-cultural theory of learning, by showing how artwork in a Maltese cathedral can support early years teaching.

Judicial assumptions about learners and learning  119 The use of such approaches is also found in non-confessional models, notably art and symbols (Miller 2003). The use of religious artefacts was at one point linked to theories of learning styles, notably “kinaesthetic” learning (Howard 2009), though this was critiqued (Homan 2000). The critique is less that these symbols have too much power, but that they are displaced “in the separation of the object from the conditions in which its sacredness is constructed” (Conroy et al. 2013, p. 154). Indeed, the materiality of classrooms has its own meanings, and much of schooling is manifested through the design and visual display of classrooms, from seating arrangements to the wall displays (Daniels 1989; Prosser 2007). Religious objects become pedagogised in these spaces, mere examples of a Hindu or Christian object, but thereby lose their spiritual resonance: a chalice in the classroom is just a metal cup. The question of religious symbols in nonconfessional contexts overlaps with the discussion in Chapter 6 of teachers’ religious dress in Dahlab.7 In that chapter, it was linked to teacher’s religiosity and professionalism, and here affects learning more directly. Some argue for the re-enactment of ritual as valuable inter-religious learning (Moyaert 2018). One state infant schoolteacher in England justified the enactment of Pesach as giving the students “as a sense of the special, even the sacred” (Fancourt & Ipgrave 2020, p. 289). However, the line between appropriate and inappropriate imitation may be hard to define and harder to delimit within the lesson, or become an actual performance: the religious education lesson may become tantamount to an act of worship in itself – or may essentially be seen as one by students. The cases These four issues are discussed in relation to three cases: Lautsi (2011), about the display of crucifixes in Italy; Perovy (2020), about at an Orthodox blessing in a Russian school; Osmanoğlu and Kocabaş (2017), about mixedsex swimming lessons in Switzerland. Passive symbols and dialogue: Lautsi v. Italy

The case was brought by Ms Soile Lautsi against Italy both in her own position as a parent and initially on behalf of her two sons, Dataico and Sami Albertin, aged 11 and 12, until they came of age and continued with the action for themselves. The family lived in Albano Terne in Italy, where the boys attended the local school, in which a crucifix was displayed in every classroom, as required under Italian law. Soile Lautsi complained to the school that this violated her and her sons’ right to freedom of belief (the negative right, under both A9 and A2P1) and requested that the crucifixes be removed. The school refused. She initiated an action in the local

120  Judicial assumptions about learners and learning court, which supported the school, and so the family pursued the matter through the Italian appeal courts – always unsuccessfully. They then appealed to the ECtHR. It was initially heard in Chamber by seven judges who unanimously found for the family, and then moved on to the Grand Chamber. The Chamber’s decision had attracted a flurry of attention from other member states that also displayed crucifixes in classrooms, from human rights groups, and from academic commentators – legal, political and educational. The Grand Chamber hearing allowed for a range of pedagogical questions and issues to be explored, not least because a range of other parties, on both sides of the argument, gave submissions. This hearing, before 17 judges, held by 15 votes to two in favour of Italy. Of the 15, 11 followed the majority decision and were Jean-Paul Costa (France), Nicolas Bratza (UK), Peer Lorenzen (Denmark), Josep Casadevall (Andorra), Rait Maruste (Estonia), Anatoly Kovler (Russia), Sverre Erik Jebens (Sweden), Päivi Hirvelä (Finland), George Nicolaou (Cyprus), Mihai Poalelungi (Moldova) and Guido Raimondi (Italy). In separate concurring opinions, Christos Rozakis (Greece) was joined by Nina Vajić (Croatia), and there were individual opinions from Giovanni Bonello (Malta), and Ann Power (Ireland). The dissenting opinion was by Giorgio Malinverni (Switzerland), joined by Zdravka Kalaydjieva (Bulgaria). This range of opinions, as in Fernández Martínez, illuminated different judicial pedagogies at play. The decision focused on the fourth issue of image and symbol in the classroom, but raised others, particularly when citing and distinguishing previous case law, notably Dahlab and Folgerø. A key challenge was defining the effect of religious symbols on students. First, this was deemed by Bonello, not to be included within the definition of teaching: Does the mere silent and passive presence of a symbol in a classroom in an Italian school amount to “teaching”? Does it hinder the exercise of the guaranteed right? Try hard as I might, I fail to see how. The Convention specifically and exclusively bans any teaching in schools unwelcome to parents on religious, ethical and philosophical grounds. The keyword of this norm is obviously “teaching” and I doubt how far the mute presence of a symbol of European cultural continuity would amount to teaching in any sense of that fairly unambiguous word. (Bonello, Separate opinion, Paragraph 3.2) This is partly a legal argument about the scope of A2P1 but also raises pedagogical questions about what and how learning occurs through the presence of symbols. An earlier paper (Fancourt 2022) considered this narrower question of symbolic pedagogy through an analysis of Lautsi and Dahlab, and two pedagogical positions are particularly relevant. First is the notion of

Judicial assumptions about learners and learning  121 unmediated didacticism, which is that symbols project a particular message without the need for further explanation. Given this assumption, the question was whether its meaning was religious or not. The ECtHR Grand Chamber judgment summarised the Italian courts’ view: …in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one’s rights, consideration for one’s freedom, the autonomy of one’s moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. (Paragraph 16) By contrast, the initial ECtHR Chamber judgment was summarised as follows: …among the plurality of meanings the crucifix might have the religious meaning was predominant. It accordingly considered that the compulsory and highly visible presence of crucifixes in classrooms was capable not only of clashing with the secular convictions of the…children… but also of being emotionally disturbing for pupils of non-Christian religions or those who professed no religion. (Paragraph 31) The pedagogical process in these is the same, it is simply the symbol’s meaning that differs. The Grand Chamber disagreed and the second pedagogical position, termed mediated didacticism, is that a symbol requires some additional element, “a crucifix on a wall is an essentially passive symbol…It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities” (Paragraph 72). This remark contains three features. One is the notion of “influence on pupils”, which implies learning: if pupils have not been influenced, then they have not learnt. Next is the weight given to didactic speech, which is coherent with the Court’s view of teachers and teaching. Third is the equivalent weight given to “participation in religious activities”. However, it is unclear why participation at a religious service is necessarily a stronger influence than a symbol’s presence, which is the argument here. This would seem to be a matter of context, and much hangs on what participation means: a large crucifix at the front of the class every lesson is potentially more likely to have an influence than being sprinkled with holy water once a term (see Perovy, below). The third pedagogical position is that the presence of different religious convictions in schools means that symbols from one religion lose their

122  Judicial assumptions about learners and learning significance. This point was presented by Judge Rozakis in his concurring opinion, first quoting and then expanding on the main judgment: “The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices… and optional religious education could be organised in schools for ‘all recognised religious creeds’…” (see paragraph 74 of the judgment). These elements, demonstrating a religious tolerance which is expressed through a liberal approach allowing all religions denominations to freely manifest their religious convictions in State schools, are, to my mind, a major factor in “neutralising” the symbolic importance of the presence of the crucifix in State schools. (Rozakis, Concurring Opinion) The presence in schools of pupils wearing hijab or turbans, or of schools marking different festivals or catering for different dietary practices, would dissipate the crucifix’s potency. On this argument, pluralistic impartiality rather than exclusionary neutrality implies a loss of voice for any individual symbol. This argument can be placed within Bruner’s (1996) fourth model, that of distinguishing between different forms of knowledge, but the argument is that the range of meanings that are not the pupils’ own means that each of them loses potency. This point leads on to the second theme: classroom dialogue. If for Rosakis, the presence of a diversity of symbols led to neutralisation, for Power, in another concurring opinion, it led to dialogue. Her starting point is the same – the diversity of positions welcomed within Italian schools: …[I]n principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner. The uncontested evidence before the Court is that Italy opens up the school environment to a variety of religions and there is no evidence of any intolerance shown towards non-believers or those who hold non-religious philosophical convictions. Islamic headscarves may be worn. The beginning and end of Ramadan are “often celebrated”. Within such a pluralist and religiously tolerant context, a Christian symbol on a classroom wall presents yet another and a different world view. (Power, Concurring Opinion)

Judicial assumptions about learners and learning  123 Up to this point, her argument broadly parallels Rosakis’s opinion. However, she then takes a different turn: The presentation of and engagement with different points of view is an intrinsic part of the educative process. It acts as a stimulus to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one’s own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. (Power, Concurring Opinion) Dialogue is here conceived of widely, and also represents Bruner’s fourth model. It is built upon the presentation of different views, which would appear to be the teacher’s task, and engagement with them, which falls to the pupils. However, it is based on these differences and the sharing of them. A striking feature of her comments is that of all the ECtHR’s judgments, hers is the most articulate theory of learning, in that she addresses the pupils’ educational task, rather than simply focusing on curriculum, knowledge or the teacher. Beyond that, she also sets out the dispositional preconditions for this task, as well as its educational benefits. When pursued in a spirit of openness, curiosity, tolerance and respect, this encounter may lead towards greater clarity and vision as it fosters the development of critical thinking. Education would be diminished if children were not exposed to different perspectives on life and, in being so exposed, provided with the opportunity to learn the importance of respect for diversity. (Power, Concurring opinion) Openness, curiosity, tolerance and respect are identified as educational prerequisites, with the cognitive outcome of critical thinking and the dispositional outcome of respect for diversity. This is striking because notions of tolerance and respect are not usually linked to pedagogical processes but are more generally mentioned as being conditions of schools or the state. For instance, the role of the state “…is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups” (Paragraph 60). In most judgments, the word respect occurs in relation to A2P1, in that the State should “respect” parental rights, but Power addresses its educational role. It appears twice, as a prerequisite and as an outcome, but these uses differ in that the first is a procedural value, in pursuing the encounter, whereas the latter is respect of diversity, suggesting

124  Judicial assumptions about learners and learning that diversity itself is to be valued over and above the valuing of the individually different people or perspectives. The suggestion is that a broader social goal of respect for diversity is to be achieved through procedural respect in classroom dialogue. This discussion of dialogue also recalls the question of individual or communal learning, and both Power’s dialogue as well as Rosakis’s neutrality infer the presence of a diversity of pupils. It is difficult if not impossible for pupils to learn on their own under these conceptions of education. In this, they echo Roebben (2012): the presence of the Other matters, and especially the presence of different others. Diversity is not just a good, it is an educational necessity. The final theme in the case is pupils’ mental development. In previous cases, the Court had alluded to students’ intellectual vulnerability. For example, in 2006, in Köse et al. v. Turkiye, on pupils who were prevented from wearing hijab, it identified “the legitimate aim of preserving the neutral character of secondary education, which is intended to protect adolescents when they are at an impressionable age”8 (The Law, section A). However, the Lautsi family did not show that the boys were influenced by the symbol: There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed. (Paragraph 66) Nevertheless, this was not enough, and more argumentation was required because Dahlab (see Chapter 6), which had been decided before, seemed to suggest that a symbol’s presence might unduly influence primary school pupils: [The Grand Chamber] points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation. (Paragraph 73) This allusion to the pupils’ “tender age” summarised the position in Dahlab, that “the applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than

Judicial assumptions about learners and learning  125 older pupils” (Dahlab, Section 1). The Lautsi brothers were 11 and 13, in lower secondary school, despite the claim in Köse that adolescents were impressionable. A major point in Lautsi was the lack of evidence that the brothers had been affected: The applicants have failed to unfurl before the Court any evidence at all that those exposed to the crucifix forfeited in any way their complete freedom to manifest their individual and personal religious belief, or their right to repudiate any religion. The presence of a crucifix in a schoolroom does not seem to have hindered any Italian in his or her liberty to believe or to disbelieve, to embrace atheism, agnosticism, anti-clericalism, secularism, materialism, relativism, or doctrinaire irreligion, to recant, apostatise, or to embrace whatever creed or “heresy” of their choice they find sufficiently appealing, with the same vigour and gusto others freely embrace a Christian faith. (Bonello, Concurring Opinion) In other words, if no learning has occurred there is no breach of their rights. Although the judges did not allude to the difference in ages, it may have been in the background of their decisions and raises questions about the interrelationship between students’ mental development and their rights as children, particularly in recognising their intellectual autonomy, but also their moral autonomy (e.g., Quennerstedt & Quennerstedt 2014). A pedagogy of disagreement: Perovy v. Russia

Some of these issues were alluded to again in Perovy. The case concerned David Perovy, a seven-year-old pupil, and his parents, who were members of the “Community of Christ”, a theologically liberal branch of the Church of the Latter-Day Saints; indeed, his father was a priest. David was dropped off by his father for his first day at school, on 1 September 2007, and then the whole class and classroom was blessed by another parent (Fr. M.), who was a Russian Orthodox priest. This was not a usual part of schooling, but other parents had requested it. The Perovy family had not been informed, having missed a teacher-parent meeting, but the teacher had asked Fr M. who considered that “there was no problem and that the boy could just be present during the rite” (Paragraph 11). The blessing lasted 15–20 minutes and consisted of prayers and hymns being said, distributing paper icons, burning of incense, sprinkling with holy water, and making the sign of the cross and kissing a crucifix. David was in the room for all of it and felt uncomfortable, but neither made the sign of the cross nor kissed the crucifix, though was teased at the time and later bullied by other pupils for not participating. In Sfard’s (1998) terms, the argument is about the degree and effects of

126  Judicial assumptions about learners and learning quasi-participation rather than acquisition. The case was heard by ECtHR in 2020, by Paul Lemmens (President, Belgium), Georgios Serghides (Cyprus), Helen Keller (Switzerland), Dmitry Dedov (Russia), Alena Poláčková (Slovenia), Lorraine Schembri Orland (Malta) and Ana Maria Guerra Martins (Portugal). They rejected the claim unanimously and highlighted that the “values of pluralism and tolerance and the spirit of compromise and dialogue do not provide…the right not to witness individual or collective manifestations of other religious or non-religious beliefs” (Paragraph 73), thereby drawing on some of the language in Lautsi. They particularly emphasised the educational value of David’s feelings: [T]he third applicant was neither forced to participate in the manifestation of beliefs…nor discouraged from adherence to his own beliefs. While being a witness of the Orthodox rite of blessing might have aroused some feelings of disagreement in him, this disagreement should be seen in the broad context of the open-mindedness and tolerance required in a democratic society of competing religious groups. (Paragraph 76) However, the claim was not for feelings of disagreement but for “feeling uncomfortable” (Paragraph 14), which is slightly different. A pupil might feel that they disagree with an action or statement but not feel uncomfortable, and conversely, might feel uncomfortable for other reasons than mere disagreement – the threat of corporal punishment, for example (see Chapter 4). In any event, this extends the view of cognitive capacities in Lautsi, that pupils are capable of forming and holding their own beliefs, into primary education. It also contrasts with Dahlab, in which young pupils were considered easily susceptible. David Perovy (aged seven) must hermeneutically hold the experience against his own beliefs. By contrast, in Fernández Martínez (see Chapter 6), the Court held: …the applicant had been teaching adolescents, who were not mature enough to make a distinction between information that was part of the Catholic Church’s doctrine and that which corresponded to the applicant’s own personal opinion. (Paragraph 141) This is surprising since understanding the distinction between fact and opinion is usually taken for granted by secondary education. There is no evidence for this claim, and it flies in the face of Bonello’s view of adolescence in Lautsi. Students seem to be variously regarded as: epistemically naive

Judicial assumptions about learners and learning  127 throughout primary and secondary schooling, unable to resist statements and ideas presented to them; epistemically capable of resisting these statements, and any classroom symbols; in need of exposure from early primary school to such statements and symbols to learn from the experience. The ECtHR’s position is muddled. Swimming together: Osmanoğlu and Kocabaş v. Switzerland

The third case is Osmanoğlu & Kocabaş v. Switzerland,9 and concerned two daughters of Aziz Osmanoğlu and Sehabat Kocabaş (du Plessis 2018). The parents were Turkish nationals who lived permanently in Basel, Switzerland, where the girls attended Vogelsang Primary School, though the eldest moved onto the “orientation school”. These schools followed the local curriculum, including mixed swimming lessons, from which pupils could only be exempted at puberty. The parents objected, refusing to send the girls to the lessons, because although the Koran did not instruct women to cover their bodies until puberty, their beliefs required them to prepare their daughters for the precepts that would be applied to them from that point onwards. (Paragraph 8) The city authorities fined them, and so they went through the Swiss courts, unsuccessfully, before appealing to the ECtHR under A9. A2P1 did not apply as Switzerland is not a signatory to this protocol. The case was decided unanimously in favour of Switzerland in 2017 by a Chamber comprising Luis López Guerra (Spain), Helena Jäderblom (Sweden), Helen Keller (Switzerland), Branko Lubarda (Serbia), Pere Pastor Vilanova (Andorra), Alena Poláčková (Slovakia) and Georgios Serghides (Cyprus). The issue had implications across Europe because there have been legal challenges to swimming lessons or sports in the domestic courts of other countries, for example, Germany (Spengler 2019), or the issue has become political, as in Finland (Almila 2020) or Ireland (Rougier 2013). Two issues are raised: the value of being educated collectively, and the pedagogy of symbols. A side issue to note is recognition of puberty, showing how assumptions about physical development play a part in educational decision-making, alongside mental development. The first major argument put forward in the judgment was on the value of learning with others. This was framed as a benefit of experiencing the whole curriculum collectively, particularly as a form of social integration: …the children’s interest in an all-round education, facilitating their successful social integration according to local customs and mores, takes

128  Judicial assumptions about learners and learning precedence over the parents’ wish to have their daughters exempted from mixed swimming lessons. (Paragraph 97) The values of individual subjects are subsumed under the wider value of experiencing an “all-round” education, and not simply because this curriculum is academically challenging or coherent but because it facilitates social integration. Trotter (2018) pointed out how the general principle of “living together” had emerged across several other judgments on A9, notably S.A.S v. France,10 which upheld a ban on the burqa on the grounds that the burqa prevented this goal (see also Matwijkiw & Oriolo 2021). Here, the pedagogical implications (learning together) are made explicit: …a child’s interest in attending those lessons lies not merely in learning to swim and taking physical exercise, but above all in participating in that activity with all the other pupils, without exception on the basis of the child’s origin or the parents’ religious or philosophical convictions. (Paragraph 98) Pupils learn because they are learning with others, never mind what school subject they learn. This is a wholesale adoption of Sfard’s (1998) participation metaphor and requires a diversity of pupils. Further, the Court rejected the parents’ argument that they were providing alternative private swimming lessons: With regard to the applicants’ argument that their daughters attended private swimming lessons, the Court reiterates the finding set out above, namely that what was important for the children was not only taking physical exercise or learning to swim – legitimate aims in themselves –, but above all the fact of learning together and taking part in that activity collectively. (Paragraph 100) It did not matter that the subject curriculum could be learnt effectively in an alternative manner. Actually, some Portuguese research suggested that school swimming lessons are often of poor quality, over-focusing on particular skills (Rocha et al. 2014), so the girls might become better swimmers from lessons out of school. Further, the paradox here is that it runs counter to the opt-out provision that was applied and insisted upon in Folgerø and Zengin. If learning together for an all-round curriculum despite religious or other differences is so valuable, then opting out is un-educational. In Folgerø, the Court praised Norway’s intention of creating pluralistic religious education for all pupils but did not explain why this matters largely because it ultimately rejects the idea, but here the Court can insist on it.

Judicial assumptions about learners and learning  129 There is also a question of whether collective swimming lessons actually aid social cohesion. Many physical education teachers value this aim, “[w]e want to create a nice school spirit – a ‘we-spirit’ – and everyone shall feel that they are part of this ‘we’” (quoted in Tolgfors 2020, p. 1035). However, while some sports might encourage “learning together”, notably through teamwork, swimming is not an obvious example. Some research suggests that physical education can build social cohesion, especially for minority background students (Cseplö et al. 2022). However, even across broadly positive cooperative activities, Grimminger-Seidensticker and Möhwald (2020), found that “solidarity [decreased] in the…class [and a]mongst girls, there was a significant decrease in integration attitudes” (p. 316). They therefore argued that these activities do not have unequivocally beneficial outcomes for all students, notably girls. The second aspect of the case was that the Court praised the school’s suggestion that the girls could wear a burkini. The Swiss Government argued that “…wearing a burkini could…help to facilitate the pupils’ communal life as part of the class and show them that they all had their place in it, even where they came from a different culture” (Paragraph 67). The parents rejected this, fearful that wearing the burqini could lead to stigmatisation. The Government responded that “being exempted from the classes could be just as stigmatising, if not more so, than wearing clothing that was adapted to religious beliefs” (Paragraph 67). As noted above, the Government’s claim is not fully supported by research, especially for girls’ participation. The suggestion that the girls could wear a burkini sits oddly alongside Dahlab (see Chapter 6) since both consider the pedagogical effect of Islamic female dress in Swiss schools. On the one hand, in Dahlab, the teacher’s hijab was considered unsuitable because it, “appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils” (Section 1). Thus, it argued that pupils could not learn these messages if the teacher wore a hijab. On the other hand, in Osmanoğlu and Kocabaş, the other pupils were presumably expected to learn these democratic messages through the wearing of the burkini by their Muslim peers, because “wearing a burkini could, on the contrary, help to facilitate the pupils’ communal life as part of the class and show them that they all had their place in it, even where they came from a different culture” (p. 67). Taken together, these two judgments would paradoxically mean that a female Muslim physical education teacher would be banned from wearing hijab, but she would have to insist on her Muslim female pupils wearing the burkini in mixed swimming lessons. The two cases obviously present different conceptions of public neutrality and pluralism, but they also assume that pupils will learn different messages from the two wearers of hijab: in Dahlab, they would learn that they should wear it, whatever their background, but in Osmanoğlu and Kocabaş, they learn that

130  Judicial assumptions about learners and learning this is one religio-cultural option, to be accepted and respected. It is unclear how pupils would make this distinction, and indeed, are arguably more likely to want to copy their peers than their teacher. Conclusion This chapter has considered the ECtHR’s judicial conceptualisations of learning, which is arguably the heart of the pedagogical process. The challenge is that learning is not specifically mentioned in the Convention so that the judges do not address it explicitly. Instead, it is inferred from judicial theories of teaching, collective schooling, mental development and symbols. All three cases, Lautsi, Perovy and Osmanoğlu & Kocabaş, show how the Court can make a variety of complex assumptions, particularly in these cases because the role of the teacher is not in focus. They make for a surprising comparison with the cases that concerned teaching and teachers’ rights, as in Chapter 6 (Dahlab and Fernández Martínez). The different arguments have ranged considerably over Bruner’s models and Sfard’s metaphors. An acquisition or didactic model runs throughout Lautsi, even though the model does not quite apply, and some judges also present Bruner’s fourth position of interpretive knowers. From Perovy, very young pupils are expected to learn from disagreement. In Osmanoğlu and Kocabaş, the judges wholeheartedly chose a participation model, and indeed it is the participation that matters most, not the didactics of learning to swim. An important next question is how pupils’ learning is evidenced and judged. As has been noted in relation to Lautsi, if there is no learning or pedagogical effect on pupils, it becomes more difficult to argue that their or their parents’ rights have been breached. The next chapter (Chapter 8) therefore considers the cases on assessment, as the process whereby pupils’ learning is judged. Notes 1 Dojan and others v. Germany (dec.), nos. 319/08 and 4 others, 13 September 2011. https://hudoc.echr.coe.int/eng?i=001-106382. 2 Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011. https://hudoc. echr.coe.int/eng?i=001-104040. 3 Perovy v. Russia 47429/09, [2020] ECHR 742. https://hudoc.echr.coe.int/ eng?i=001-205133. 4 Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, 10 January 2017. https://hudoc.echr.coe.int/eng?i=001-170436. 5 Dupin v. France, 2282/17, 18 December 2018. https://hudoc.echr.coe.int/ eng?i=002-12340. 6 Folgerø and others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356.

Judicial assumptions about learners and learning  131 7 Dahlab v. Switzerland, App. No. 42393/98 (2001). https://hudoc.echr.coe. int/eng?i=001-22643. 8 Köse and 93 others v. Türkiye (dec.), no. 26625/02, ECtHR (Second Section), 24 January 2006. https://hudoc.echr.coe.int/eng?i=001-90405. 9 Osmanoğlu & Kocabaş v. Switzerland, no. 29086/12, 10 January 2017. https:// hudoc.echr.coe.int/eng?i=001-170436. 10 S.A.S v. France. no. 43835/11, 1 July 2014. https://hudoc.echr.coe.int/ eng?i=001-145466.

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Judicial assumptions about learners and learning  133 Kuščević, D., & M. Brajčić (2020). Works of art in the teaching of religious education. Nova prisutnost, XVIII(3), 546–546. DOI: 10.31192/np.18.3.7 Matwijkiw, A., & A. Oriolo (eds.). (2021). Law, cultural studies and the “burqa ban” trend: An interdisciplinary handbook. Cambridge University Press. McGlynn, C., U. Niens, E. Cairns, & M. Hewstone (2004). Moving out of conflict: The contribution of integrated schools in Northern Ireland to identity, attitudes, forgiveness and reconciliation. Journal of Peace Education, 1(2), 147–163. DOI: 10.1080/1740020042000253712 McMurtary, M. J. (2007). Realms of engagement—Toward an understanding of the contribution of the arts to children’s spiritual development. International Journal of Children’s Spirituality, 12(1), 83–96. DOI: 10.1080/13644360701266200 Miller, J. (2003). Using the visual arts in religious education: An analysis and critical evaluation, British Journal of Religious Education, 25(3), 200–213. DOI: 10.1080/0141620030250304 Mohme, G. (2017). Somali Swedes’ reasons for choosing a Muslim-profiled school— Recognition and educational ambitions as important influencing factors. Journal of School Choice, 11(2), 239–257. DOI: 10.1080/15582159.2017.1302256 Moyaert, M. (2018). On the role of ritual in interfaith education. Religious Education, 113(1), 49–60. DOI: 10.1080/00344087.2017.1383869 Nipkow, K. E. (2006). Theologie des Kindes und Kindertheologie [Theology of children and childrens-theology]. Zeitschrift Für Theologie Und Kirche, 103(3), 422–442. http://www.jstor.org/stable/23586088 O’Grady, K. (2019). Religious education as a dialogue with difference: Fostering democratic citizenship through the study of religions in schools. Routledge. Piaget, J. (1926). The language and thought of the child. Routledge & Kegan Paul. [Trans. M. Gabain, Le Langage et la pensée chez l’enfant, 1923]. Piaget, J. (1929). The child’s conception of the world. Routledge and Kegan Paul. [Trans. J. Tomlinson & A. Tomlinson, La Représentation du monde chez l’enfant, 1926]. Piaget, J. (1932). The moral judgement of the child. K. Paul, Trench, Trubner. [Trans. M. Gabain, Le jugement moral chez l’enfant, 1932]. Pring, R. (2018). The future of publicly funded faith schools: A critical perspective. Routledge. Prosser, J. (2007). Visual methods and the visual culture of schools. Visual Studies, 22(1), 13–30. DOI: 10.1080/14725860601167143 Quennerstedt, A., & Quennerstedt, M. (2014). Researching children’s rights in education: Sociology of childhood encountering educational theory. British Journal of Sociology of Education, 35(1), 115–132. DOI: 10.1080/01425692. 2013.783962 Rocha, H., D. Marinho, S. Ferreira, & A. Costa (2014). Management and teaching methodology of swimming lessons in the Portuguese primary schools. Motricidade, 10(2), 45–59. https://revistas.rcaap.pt/motricidade/article/ view/2709/2971 Roebben, B. (2012). Living and learning in the presence of the other: Defining religious education inclusively. International Journal of Inclusive Education, 16(11), 1175–1187. DOI: 10.1080/13603116.2011.552648

134  Judicial assumptions about learners and learning Rougier, N. (2013). The hijab in the (denominational) Irish education system – Tolerated or accepted? Education Inquiry, 4(1), 149–166. DOI: 10.3402/edui. v4i1.22066 Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Spengler, F. (2019). Sharʿī norms and German schools: Court challenges to participation in swimming lessons, school trips and sex education. Islam and Christian– Muslim Relations, 30(3), 363–382. DOI: 10.1080/09596410.2019.1652451 ter Avest, I., D.-P. Jozsa, T. Knauth, J. Rosón, & G. Skeie (eds.). (2009). Dialogue and conflict in religion and education: Studies of classroom interaction in European countries. Waxmann. Tirri, K. (2010). Combining excellence and ethics: Implications for moral education for the gifted. Roeper Review, 33(1), 59–64. DOI: 10.1080/02783193.2011.530207 Tolgfors, B. (2020). Promoting integration through physical education(?). Sport, Education and Society, 25(9), 1029–1042. DOI: 10.1080/13573322.2019. 1687442 Trotter, S. (2018). ‘Living together’, ‘learning together’, and ‘swimming together’: Osmanoğlu and Kocabaş v Switzerland (2017) and the construction of collective life. Human Rights Law Review, 18(1), 157–169. DOI: 10.1093/hrlr/ngx045 Wielzen, D., & I ter Avest (eds.). (2017). Interfaith education for all: Theoretical perspectives and best practices for transformative action. Brill. Zucca, L. (2011). The classroom as a tolerance lab. In M. Hunter-Henin (ed.), Law, religious freedoms and education in Europe (pp. 37–67). Ashgate.

8 Judicial assumptions about assessment and examinations

This chapter explores judicial assumptions about assessment, including the different processes and methods of judging pupils’ work both internally, within classrooms and schools, and externally, through public examination systems. As noted previously, the nomenclature of educational processes is variable, but assessment is generally recognised as being distinct. As noted in Chapter 3, Bernstein (1973) described it as “what counts as valid realisation of [curricular] knowledge on the part of the taught” (p. 228), pointing to both the learner’s manifestation of their learning in the term “realisation”, and the external judgement on this by teachers or others in the notion of validity. As also noted previously (Chapter 2), the Council of Europe has been interested in assessment methods for over half a century (see Peterson 1971). There are however some common assumptions and misunderstandings associated with the term. The Council of Europe (2018) commented, A major problem with everyday discourse about assessment is that “assessment” is assumed to be synonymous with “testing”, but testing is only one form of assessment. A second problem is that “assessment” is confused with “evaluation”, a confusion made more common by the fact that in some languages – for example French “évaluation” – the same word is used for both assessment and evaluation. (p. 52) However, even in this publication, the Council does not explain what it considered the difference between these terms to be – in any language. The topic therefore has the potential for generating a variety of judicial views from different assumptions about assessment, and not least because these assumptions themselves contain further assumptions about the wider aims and purposes of education. A related issue is the ethics of assessment, especially the extent to which assessment processes should be informed by human rights, including children’s rights. This can be challenging, and Elwood and Lundy (2010) argue DOI: 10.4324/9781003393276-8

136  Judicial assumptions about assessment and examinations that in the UK, an “explicit commitment to children’s rights begins to evaporate when the focus moves to education generally and assessment in particular” (p. 336). High-stakes testing, notably public examinations, is expected to be fair and unbiased, rewarding students appropriately, but may be criticised because particular types of students are inadvertently preferenced (Woods et al. 2019); examination processes during the COVID pandemic were under particular scrutiny in terms of whom they favoured (Nisbet and Shaw 2022). Further, religious education may overlap with ethics education, and the ethics of assessment is particularly challenging around the assessment of ethics; Franck (2017) has edited an account of and reflections on the introduction of national tests in ethics at the end of primary schooling in Sweden, highlighting some of the conceptual, ethical and technical challenges involved, such as identifying progression in ethical reasoning that can be graded. Assessment can be conducted for a range of purposes, which do not necessarily align with learning (Baird et al. 2017; Newton 2007). They can be broadly considered as moving from the individual to the educational system, and here are discussed at four levels: assessment and pupil learning, which considers how assessment serves curriculum and pedagogy in the classroom for pupils; school decision-making, which considers how schools react institutionally to assessment outcomes; qualification and selection, which considers how assessment (and particularly examinations) is used to take pupils beyond school into further study or employment; programme evaluation and system-monitoring, which outlines how the cumulative assessment data from pupils can serve in reviewing regional, national and international processes of education and assessment. Assessment and pupil learning An obvious important purpose of assessment is to monitor and support pupils’ learning. This is often associated with the notion of formative assessment (and assessment for learning) as opposed to summative assessment (and assessment of learning), though is not restricted to this. Here is the OECD nearly two decades ago, addressing the contrast: Formative assessment – the frequent, interactive assessments of student understanding and progress to identify learning needs and shape teaching – has become a prominent issue in education reform. This approach is frequently contrasted with “summative” assessment – the more familiar, and much more newsworthy, tests and examinations that seek to provide summary statements of students’ capabilities. (OECD 2005, p. 5)

Judicial assumptions about assessment and examinations  137 That regular processes of classroom assessment could support learning is acknowledged. However, support of this sort requires that the inter-­ relationship between curriculum, teaching/learning and assessment be addressed, notably in the notion of alignment (e.g., Biggs 1996). Several ordinary classroom practices that could support or involve educational judgements were identified as “assessment for learning” (Wiliam 2011), notably: classroom questioning, giving feedback to students on their work, simply sharing criteria in understandable forms, encouraging students to give each other feedback, or assess their own work. These approaches to assessment resonated with an interest in developing more autonomous, self-regulated reflective learners who could also take their own learning forward (Panadero & Romero 2014). Formative assessment provided opportunities and challenges for religious education. As with any subject, the broad principles of, for example, alignment, feedback and questioning, were applicable. There were potential parallels between these reflective assessment processes and the curricular requirement for criticality, in that both required the skill of stepping back intellectually, as complementary forms of metacognition (Fancourt 2005, 2010). For example, the strategy of open questioning that was advocated as part of assessment for learning (Wiliam 2011) was consonant with a pluralistic model of religious education, in which pupils’ personal answers were not judged right or wrong, but simply their clarity of expression (Fancourt 2009). School decision-making Assessment can also be used by schools to inform decisions about the most suitable classes or courses for a pupil. For example, pupils might be placed in sets or streams based on assessment, or transferred from one set or stream to another. This is not to debate their benefits (Muijs & Dunne 2010), but simply to point out that within educational systems that deploy them, some assessments will have this function and thereby also influence teaching. Thus, Bradbury (2018) showed in England “the impact of the Phonics Screening Check, a statutory assessment of phonic awareness at age 5–6, on grouping practices in classrooms for children aged 3–7 years” (p. 556), because an imposed national baseline test became the determinant of classroom seating arrangements, and “forcing teachers to act against their views on what is best for the children in their classes” (p. 556). Another example is the use of diagnostic tests to identify specific educational needs; these date back to Binet and Simon’s original IQ tests in the early 1900s’ France (Nicholas et al. 2013). They are different from a general assessment for the whole class but are diagnostically targeted at individuals. Indeed, such tests and provisions are themselves bound up in legal and

138  Judicial assumptions about assessment and examinations human rights issues about inclusion, as noted in relation to Dupin v. France1 (see Chapter 7; also Perry & Clark 2015). In principle, the test’s purpose is benign, intended to support teachers in working with their students, for example, Reid and Guise’s (2017) practical guide to the assessment of dyslexia. However, there are also risks and challenges, both in identifying and defining the need, and in implementing strategies, for example, on dyslexia (Snowling, Hulme & Nation 2020) or on inattention (Kallitsoglou 2013). The tests themselves make assumptions about cognitive development and attainment, and the support strategies usually have implications for what is done, who does it and where: the new strategies may fall to the class teacher, or teaching assistant, and may be within the student’s ordinary classroom or a learning support unit. These tests have pedagogical and organisational consequences. The final example here is when assessments are used to guide students prior to further qualification or employment in framing their choices, often because assessments have led students to define themselves as having (or lacking) certain types of intelligence, and so choosing “academic” or “vocational” routes (Swift & Fisher 2012), or preferring one type of subjects over another, the sciences or the humanities, when they can specialise. Paradoxically perhaps, pupils must often make these decisions before they have sat public examinations, so rely on internal school assessments as a reliable guide to their future attainment and prospects. Qualification and selection Perhaps the best-recognised form of school assessment is in public examinations when students leave schools as the means to gain entry to external educational institutions, notably universities or vocational institutions, or to employment. Accreditation and certification are the formal means for recognising their achievement and attainment: “[i]ndividual results are used to judge whether a person is sufficiently qualified for a job, course of instruction or role in life, i.e., whether…they are equipped to succeed in it” (Newton 2007, p. 164). However, if there is competition for employment or the next stage of education, these examinations also have a role in aiding selection: “[i]ndividual results are used to predict which applicants—all of whom might, in principle, be sufficiently qualified—will be most successful in a job or course of instruction (and, consequently, provide a basis for choosing between them)” (p. 164). These two functions of formal examinations are not necessarily compatible, since for the qualificatory purpose the process simply has to check whether a student has met the required standards, but the selection purpose requires a comparable grading of students (see Kvale 1993). For overall qualification, one would want as many students as possible to do well since

Judicial assumptions about assessment and examinations  139 the purpose of schooling is to ensure effective teaching, but for the purposes of selection, different grade bands are required to show differences in attainment within and between different years, so that choices can be made between students from different cohorts, from one year to the next. Furthermore, both these functions should be fair, and not favour particular types of students on account of their background – at least in principle (He & Opposs 2012). These tensions are difficult to manage, and were played out in Cyprus in the early 2000s, when the government switched from having two examination systems, one for school-leaving qualifications (the Common Examination), and one a university entrance examination, to having one “Pancyprian Examination” for both roles. As Lamprianou (2012) explained, whilst having two systems was absurd, the new system caused four problems: a perception of a failing system because students apparently did not do as well under the Pancyprian exams; differences between teachers’ predictions and final outcomes, because the criteria were unclear; challenges in comparability between subjects, not least because 113 different subjects were recognised; a rise in private tutoring, which favoured students from richer backgrounds. The tensions therefore had an impact on the whole education system and not just on the assessment processes in themselves since wider questions began to be asked. The role of assessment in religious education is complex in relation to these two purposes. Accreditation can be considered a valuable outcome for students, as for any subject, and in many countries across Europe and more widely, it is a part of public examinations. Indeed, if it is unexamined, it might appear unimportant. There may of course be challenges, in that the examination process favours a particular approach or does not do justice to another. For example, Bowie and Coles (2018) argued that English examinations do not properly address biblical hermeneutics, so their argument is for betterdesigned assessments, and Franck (2017) explored the challenges of the introduction in 2013 of ethics assessments in Swedish religious education at the end of primary school. However, the challenge for many, when the subject is strongly associated with religiosity, is in deciding what should be assessed; Holton (2000), reflecting on changes to Catholic education in Ireland, raised the theological stakes considerably in claiming that “[w]e could examine knowledge, understanding, insight and skills. We cannot and dare not pass judgement on faith – that prerogative belongs to God alone” (p. 288). Even so, the second purpose of selection, and therefore grading, raises these questions more acutely. Religious education was introduced to the Croatian school examination regime in the 2000s, and the overseeing expert committee were delighted with students’ high performance (Filipović 2010), but Jokić and Hargreaves (2015) explored pupils’ attitudes, as a subject in which “83.2% of pupils achieved an ‘Excellent’ grade (equivalent to an A) and

140  Judicial assumptions about assessment and examinations only 0.5% of pupils achieved a grade below ‘Good’ (equivalent to a C)” (p. 13). For pupils, the subject was considered strategically useful to take given the high marks but was not considered worthwhile precisely because it was, allegedly, too easy. Teachers were caught between competing pressures: You know what would happen if I start giving ‘real’ grades? Riots! First pupils would go crazy, and then parents would say: Who do you think you and your subject are? But then curiously, also the Croatian Bishops Conference would say that this is negative for the Church’s mission. As a teacher of Catholic RE, I can partially understand it, but as a teacher in general I think giving everyone an A is wrong and makes my work even harder. (Jokić & Hargreaves 2015, p. 14) Teachers and examiners found themselves caught between these two functions, and within wider social and constitutional tectonics. Programme evaluation and system monitoring This leads on to the final function of assessment: the evaluation and monitoring of courses and programmes. The imperfect implementation of the Pancyprian Examination led to a range of such considerations (Lamprianou 2012). Assessment can inform institutional or governmental decisions about the organisation of the curriculum, pedagogy or assessment. Here, the student is not the focus of attention, but different dimensions of education, from resourcing or staff allocation to judgements about schools’ success or failure, notably in the school inspection services (Scholes 2022). Also, governments can set themselves educational targets, for example, numeracy or literacy, and indeed these are the focus of international monitoring by supranational organisations, notably OECD in its PISA tests, but also the Council of Europe. These evaluative purposes have two implications for religious education. First is in terms of the subject itself as it currently functions. Second, however, they raise questions about the wider position of religions in education. Sai (2020) found that Muslim parents in Ireland who selected Muslim schools “were orientated towards…their children’s religious identities, rather than academic achievement” (p. 175), but Godfrey and Morris (2008) found that high attainment in religious education in England is linked to general success in examinations. Others have addressed the examination outcomes of faith schooling. Cichosz (2022) considered the effectiveness of Catholic schools in public examinations in Poland, showing they performed better than other schools; Allen and Vignoles (2016) asked if the presence of faith schools in England helped raise attainment across an educational district. Likewise, Agirdag, Driessen and Merry (2017) compared

Judicial assumptions about assessment and examinations  141 the examination performance of immigrant Muslim and native Belgian pupils in both common schools and Catholic schools, finding little difference except in the initial attainment of Muslim pupils in both settings. Interestingly, Pugh and Telhaj (2008) had considered the potential benefit of faith schooling on mathematics attainment in Belgium and found “modest attainment benefits in mathematics when schools are influenced by faith communities but not when they are influenced by trade unions or business groups” (p. 235). There are of course wider arguments for or against faith schools, such as their admissions criteria or their contribution to social cohesion, but clearly, students’ performance in examinations within a national educational system will be part of these debates. The cases First, the analysis will reconsider some passing comments on assessment within Zengin v. Türkiye,2 from 2007, and then two other cases are reviewed, Saniewski v. Poland,3 from 2001, and Grezelak v. Poland,4 from 2010. These two cases both concerned pupils who had opted out of religious education, but whose official report showed an absence of marks in the subject. Judicial silence on assessment: Zengin v Türkiye

Zengin, as discussed in Chapter 5, concerned whether the Turkish curriculum followed the Kjeldsen principles in its handling of the Alevi tradition. Various parents had argued that Alevism was not represented fairly as Islam was equated almost exclusively with the Sunni tradition, and only Christian and Jewish parents were given the right to opt out of this form of religious education. The case therefore largely concerned the content of the curriculum and the extent of the opt-out provisions. While considering the curriculum some passing comments were made about assessment. First, after a description of the approved textbooks up to 9th grade, the “Government also explained that pupils were assessed in this subject only by written examinations” (Zengin, Paragraph 24). It is unclear what is intended by “only”; the implication seems to be that other forms of assessment would be unsuitable, but there is no indication of what they might have been. It is also unclear what these tests were for, or how they were worded. They might simply have been end-of-module tests to check on progress, or they might have been contributing to an overall yearly mark. The Court’s decision was also opaque; after criticising various aspects of the curriculum and the textbooks, it noted that “…pupils must learn several suras from the Koran by heart and study, with the support of illustrations, the daily prayers…and sit written tests for the purpose of assessment” (Paragraph 62). This does seem to support the argument that the term “only” in

142  Judicial assumptions about assessment and examinations Paragraph 22 excluded other forms of assessment. It is unclear why written tests are included in the list here. The ECtHR’s argument might be critical of memorisation of Quranic texts and daily prayers as inappropriate, and therefore oral assessment by demanding that pupils recite them would be as well. However, it is not specified why written tests in themselves are inappropriate, or if this is simply related to the Court’s objections to the curriculum. It is also difficult to imagine what purpose tests would serve other than assessment; a test would by definition be an assessment – though obviously an assessment might not be a test. It might be that testing pupils was considered to aggravate the infringement because pupils would potentially feel under pressure to write conformist answers to gain marks. For example, hypothetically, an Alevi pupil confronted with a question such as “Explain the importance of the five pillars for us (10 marks)” might be reluctant to explain that the five pillars were not important and instead simply provide a stock generic answer to receive the marks. This dilemma can be found elsewhere. Here is a headteacher in England commenting as a parent: My son (we’re Baptists) argued with his RE teacher over baptism. She told them that any answer to a question on baptism must describe infant baptism in a font. He told her that was wrong and she warned him that he must write what she said, “and if you don’t mention candles you won’t get full marks”. (Jackson et al. 2010, p. 152) The teacher emphasized Anglican or Catholic child baptism whereas the student prioritized adult baptism. There are potential tensions between personal belief and text or examination criteria since the latter can lack nuance. In all the cases referred to in the book so far, the concept of assessment is undeveloped; even Yalçin v. Turkiye,5 the subsequent Alevi case, which rehearses the same issues, never mentions it. This silence is noteworthy since one of the key arguments in many cases is about the effect of inappropriate teaching (or symbols) on pupils. This effect could be at least partially demonstrated by considering the assessment criteria. Showing what pupils were expected to do to demonstrate their learning would give a direct indication of how their own beliefs were not respected. Further, the notion of criticality, as one of the Kjeldsen principles alongside pluralism and objectivity, would be better judged by considering the kinds of learning outcomes posited, notably in the use and meaning of terms such as evaluate, discuss or analyse. The cases however focus on the curriculum, and not on the stated assessable aspects of pupils’ learning. This lack of attention to any potential purposes results in some odd claims, notably that “only pluralism in education can enable pupils to develop a critical mind” (Zengin, Paragraph 69), since it is certainly possible to envisage an

Judicial assumptions about assessment and examinations  143 uncritical pluralism that is simply descriptive and lacking criticality, and to envisage criticality within teaching about one tradition, as the Court had held in Angelini v. Sweden. On the absence and averaging of marks: Saniewski and Grzelak

Two cases have considered assessment explicitly, and both these cases concern Polish students who had chosen to opt out of Polish religious education, so some curriculum background is useful (Mąkosa 2015). Polish religion education first emerged after 1918, when Poland became independent. The Catholic church was regarded as one of the mainstays of the survival of Polish identity during the previous period of partition, and unsurprisingly religious education became …obligatory for everyone who declared themselves as Catholic, and the mark acquired in religious education was placed on the graduate’s school diploma – the first on the list. In addition, high-school graduates were obliged to take a final religious education exam, and the acquired mark was then shown on the certificate of secondary education completion. (Mąkosa 2015, p. 54) Two elements stand out here, its involuntary nature once religious denomination was determined, and its place in assessment reports. After Nazi wartime occupation, Poland became part of the Communist bloc, and unsurprisingly the subject was no longer taught (or assessed) in schools, though the church maintained its catechetical role, but without any assessment. The current arrangements, described in the cases below, emerged in 1990 after the fall of Communism, with the return of religious education, which resumed its place in assessment procedures. Its return in strength was unsurprising given the church’s continued role in opposing Communism, not least as the Pope (John Paul II) was Polish. However, not everyone welcomed these developments. Bartosz Saniewski studied at Pionki Secondary School in the mid-1990s. In 1997, he received his school report. This set out all the subjects he had studied, with their marks. He had opted out of Catholic religious education but there was no alternative available at his school, i.e., ethics, and it is unclear what he did during the lessons. His report was a standardised form, so “religion/ethics” was shown, but no mark was given; there were similar gaps for other subjects he was not taking, such as music or fine arts. Saniewski objected to the absence of a mark for religion/ethics on the grounds that …his freedom of thought and conscience was breached since the absence of a mark for the course in religion reveals that he did not follow this

144  Judicial assumptions about assessment and examinations course. He is obliged thereby to make a public statement as to his beliefs. He submits that he is an atheist. (Complaint section) His argument was therefore under A9, and he also complained on behalf of his parents under A2P1 since “the contents of the impugned school report breached their right to ensure his education and teaching in conformity with their religious and philosophical convictions” (Complaint). He had pursued the matter through the Polish courts and then to the ECtHR, which heard it in 2001. The Chamber consisted of Jean-Paul Costa (France), Loukis Louciadies (Cyprus), Jerzy Makarczyk (Poland), Françoise Tulkens (Belgium), Karel Jungwiert (Czechia), Hanne Sophie Greve (Norway) and Mindia Ugrekhelidze (Georgia). The argument had legal and educational dimensions. It was not immediately straightforward in that his claim was that the revelation of an absence would be a breach of his human rights. Legally, it depended on accepting that this amounted to a public declaration of his beliefs, and that making such a declaration would be a breach of A9. Therefore, much of his claim concerned the potential effects of showing his report to others, “…in Poland, which is a Catholic country where manifestations of religious intolerance are frequent, his chances of obtaining a place at university or a good job are seriously diminished” (Complaint). His argument here is about qualification and selection. However, it is not that he had a low or unfair mark, but that evidence of an absent mark indicated a lack of participation. The Court found that This report covered only one school year when he was young and the applicant does not contend that he would have to show it to any higher educational establishment in the framework of an admissions procedures, or to submit it to any future employer. He has thus not substantiated his claim that the report might prejudice his future educational or employment prospects. (Paragraph 1) Their argument here suggests that since nobody needed to see it, nobody could infer from his lack of marks that he had opted out of the subject, especially to refuse him a university place or employment. Indeed, they also noted that he could not show that anyone had treated him intolerantly “on account of his atheism” (Paragraph 1), which was the essential issue. The claim on behalf of his parents was dismissed on technical grounds. The broad facts and issues were repeated a few years later in 2010, when Mateusz Grzelak, and his parents, Urszula Grzelak and Czesław Grzelak, also brought a case against Poland to the ECtHR, “complain[ing] about

Judicial assumptions about assessment and examinations  145 the absence of a mark for “religion/ethics” on the school reports of Mateusz Grzelak” (Paragraph 3). Mateusz had just started primary school, aged 7 in 2002, and his parents withdrew him from the subject. However, as he was the only withdrawn pupil in the school, he was “either left without any supervision in the corridor or spent his time in the school library or in the school club” (Paragraph 7). These arrangements continued throughout his primary school, though the situation was exacerbated because the parents thought that he was being bullied by his peers for not attending the lessons and argued that this was a form of discrimination. The school claimed that he had “provoked his colleagues by mocking religious symbols and children who attended religious instruction” (Grzelak, Paragraph 11). Sadly, these issues did not disappear at his secondary school. Finally, the family took action for the lack of a suitable ethics course, and for the marking policy, under A9, A2P1 and A14 (freedom from discrimination, see Chapter 2). The case was heard by Nicolas Bratza (UK), Lech Garlicki (Poland), Giovanni Bonello (Malta), Ljiljana Mijović ((Bosnia and Herzegovina), David Thór Björgvinsson (Iceland), Ledi Bianku (Albania) and Mihai Poalelungi (Moldova). They found for Mateusz, under A9 and A14; Judge Björgvinsson gave a partly dissenting judgment, in finding for Mateusz under A9, but not A14. They found against his parents on all counts. One difference between the two cases was that the absence of a mark was not a claim in relation to one year towards the end of schooling as in Saniewski, but throughout it. Indeed, Mateusz’s “school report…for the first three years of primary school contained three subjects: behaviour (zachowanie), religion/ethics and general education. In the place reserved for a mark for “religion/ethics” the school report had a straight line” (Paragraph 21). Thus, in the first three years of schooling, essentially a third of his report card was empty. In the next, fourth, year, it “contained a list of courses…including “religion/ethics”, but now there was a straight line against religion/ethics” (Paragraph 22). Bizarrely, in …the fifth year in respect of the subject “religion/ethics” there was a straight line in the marks and the word “ethics” was crossed out. A similar situation applied to the primary school leaving certificate which the third applicant obtained in June 2004. (Paragraph 23) The report card essentially indicated that ethics was not an option in the school and may have reflected an automatic deletion of ‘ethics’ from the card for all the school’s students. However, it then showed that he had not received any marks specifically in ‘religion’. Some of the arguments were the same as in Saniewski, and indeed Poland argued that the cases were the same, also referring to an earlier decision by

146  Judicial assumptions about assessment and examinations the European Commission on Human Rights (C.J., J.J. and E.J. v. Poland6). However, there were some differences, one of which was whether the marks for ethics/religion would be included in the pupil‘s annual overall mark, which potentially could determine whether they went up in the next class or repeated the year. Until 2008, the mark was not included in the average mark, but then the policy changed so that “marks obtained for religious instruction or ethics, as well as other optional courses, would be counted towards the ‘average mark’ obtained by a pupil in a given school year and at the end of a given level of schooling” (Paragraph 46). This meant, according to the appellants, “there was a risk that pupils would follow religious instruction against their will in order to have the mark counted as part of their average mark” (Paragraph 83). The argument was about school decision-making, year-on-year, in deciding how well a pupil was performing, though it could also have an impact on the type of secondary school to which they would be allocated, if there was streaming. The Polish government attempted to refute this argument on two counts. First, it argued that there was no coercive effect in including the mark in its calculations, as …counting the mark for religion/ethics towards the “average mark” was just a consequence of the choice made with respect to attendance at religion/ethics classes. (Paragraph 72) The situation, it argued, was neutral in that if a pupil studied the subject, the marks would be included in calculating the average, and if they did not there would be one less set of marks to include. The majority decision rejected this: the Court observes that the above rule may have a real adverse impact on the situation of pupils like the applicant who could not, despite their wishes, follow a course in ethics. Such pupils would either find it more difficult to increase their average mark as they could not follow the desired optional subject or might feel pressurised – against their conscience – to attend a religion class in order to improve their average. (Paragraph 96) This is statistically speaking untrue, which Björgvinsson addressed in his partially dissenting judgment: …only subjects that a pupil has completed are included in the calculation of his or her average mark. The possible positive or adverse impact of not

Judicial assumptions about assessment and examinations  147 having followed a course on religion or ethics, and not having received a mark as a result, could have on the applicant’s average is a matter of pure speculation. Everything would hinge on his performance in the subject. The mere possibility that if he scored well enough his average might be increased cannot as such be a sufficient basis for finding a difference in treatment. (Dissenting Judgment, Paragraph 7) For example, if a student’s average from eight subjects is 60%, an extra ninth subject’s mark will only increase this average if it is above 60% (e.g., an extra mark of 69% would be needed to increase the average to 61%); but it will decrease the average if it is below 60% (a 51% mark would decrease the average to 59%). Little is gained by continuing with an unconscionable subject on the basis that one might do well enough at it to raise one’s overall grade, since one would also simultaneously run the risk of performing badly in it, thereby lowering one’s overall grade. Tactically, it might be worth the risk if grades are inflated – the Croatian situation, allegedly, of “an easy A” (Jokić & Hargreaves 2015, p. 4). The Government also went on to address the claim that this average mark affected their subsequent school placement, explaining that …the mark for “religion/ethics” on the school diplomas awarded at the end of primary school or gimnazjum did not influence a pupil’s prospects in respect of the level of his or her subsequent education, since access to both junior secondary schools and to secondary schools depended solely on the results of the examination taken at the end of the relevant education period. The Government stressed that under no circumstances would the absence of such a mark be problematic when it came to admission to university. (Paragraph 73) The absence, it argued, had implications for neither qualification nor selection, as there was another formal examination that fulfilled this function. Nevertheless, the Court found in favour of Mateusz Grzelak (though not his parents): The fact of having no mark for “religion/ethics” inevitably has a specific connotation and distinguishes the persons concerned from those who have a mark for the subject… This finding takes on particular significance in respect of a country like Poland where the great majority of the population owe allegiance to one particular religion. (Paragraph 95)

148  Judicial assumptions about assessment and examinations Thus, …the absence of a mark for “religion/ethics” on [his] school certificates throughout the entire period of his schooling amounted to a form of unwarranted stigmatisation. (Paragraph 99) Without further explanation, it is unclear how stigmatisation takes effect, since nothing directly depended on it (average marking aside), and it is unclear to whom the report would be shown. Staff within the school would know that a student had opted out, as would their parents; there is no suggestion that the grades were collated by the local or national authorities for monitoring or evaluative purposes. The legal point is that the effect of the marks on his school career was unimportant: it was the persistent semiexplicit declaration of beliefs that was the issue, though this leaves the legal paradox that pupils have the right to opt out of religious education, thereby essentially declaring their beliefs, but the school is not entitled to ask them what they are or draw attention to them (see Berkmann 2022). Moreover, they are as much about the failure to provide suitable ethics education, since then both pupils would have had a set of marks in the relevant column and there would have been much less likelihood of litigation. In terms of the different models and metaphors for judicial pedagogies (Bruner 1996; Sfard 1998), assessment systems generally assume an acquisition model of what the student has learnt, either in terms of knowledge recall or intellectual skills. Even if their teachers and others work within any of Bruner’s models – imitation, didactics, as knower or as knowing – the assessment process only considers what they can individually show at the end of it. However, as noted, the Polish cases show how the fact of participation (or lack) in the subject can become significant. It was not participating that was the potential issue, not any particular mark. Conclusion Assessment is unsurprisingly not explicitly mentioned in the Convention, so judges do not consider it directly, as also noted with the notion of learning (see Chapter 8). This means that it is never directly in their sights for consideration. However, the cases on assessment reveal some of the challenges for judges if the methods and purposes of assessment are not considered. In Zengin, assessment of pupils’ understanding of a problematic curriculum is called into question, but it is not clear why this raises specific issues. The Polish cases shift between the second and third levels of assessment – school decision-making, and qualification and selection. The issue of average marks was discussed in relation to within-school, school transfer, and

Judicial assumptions about assessment and examinations  149 post-school issues, though it should be noted that the majority decision is simply wrong on statistical grounds. However, in Grzelak, the issue of the ongoing yearly mark sheet is simply seen to be stigmatising, without considering why or how – in Saniewski, the argument in this respect was stronger, but the decision went the other way. A challenge is that no parameters are set on what might or might not be suitable assessment processes: indeed, the court almost assumes that reports with subject marks are an inevitable aspect of schooling. The cases also do not consider the first and fourth purposes of assessment: support for pupil learning, and system evaluation. One could argue that a report is aimed at the former – a means of pinpointing pupils’ current progress as a diagnostic tool alongside recognition of achievement and targets for development, for sharing with the pupil and parents. If so, it would make sense to have a blank where they have not studied the subject since no form of progress would be identifiable, and this would not be objectionable. Further, on the latter, there was no consideration of whether pupils’ data were collected locally or nationally for system evaluation. It would be useful to know how many students were studying religion or ethics, and what progress they were making – or opting out of religion because ethics was not on offer. This data could be anonymously shared. As noted at the start of this chapter, assessment is an important part of the wider nexus of education, alongside curriculum, teaching and learning. Having reviewed all these elements individually, the next chapter (Chapter 9) turns to considering what the analysis chapters collectively suggest about how judicial pedagogies shape the Europeanisation of religions and beliefs in education. Notes 1 Dupin v. France, 2282/17, 18 December 2018. https://hudoc.echr.coe.int/ eng?i=002-12340. 2 Hasan and Eylem Zengin v. Turkiye, no. 1448/04, 9 October 2007. https:// hudoc.echr.coe.int/eng?i=001-82580. 3 Saniewski v. Poland Application No. 40319/98, judgment of 26 June 2001. https://hudoc.echr.coe.int/eng?i=001-5956. 4 Grzelak v. Poland, No. 7710/02, ECtHR (Fourth Section), 22 November 2010. https://hudoc.echr.coe.int/eng?i=001-99384. 5 Mansur Yalçın and others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-146487. 6 C.J., J.J. and E.J. v. Poland, no. 23380/94, 16 January 1996. https://hudoc. echr.coe.int/eng?i=001-2659.

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152  Judicial assumptions about assessment and examinations Peterson, A. (1971). New techniques for assessment of pupils work. Committee for General and Technical Education. Pugh, G., & S. Telhaj (2008). Faith schools, social capital and academic attainment: Evidence from TIMSS-R mathematics scores in Flemish secondary schools. British Educational Research Journal, 34, 235–267. https://doi.org.ezproxy-prd. bodleian.ox.ac.uk/10.1080/01411920701532178 Reid, G., & J. Guise (2017). The dyslexia assessment. Bloomsbury. Sai, Y. (2020). Islamic religious education in Ireland: Insights and perspectives. Peter Lang. Scholes, S. (2022). Precarious provision and mixed messages: Religious education, school inspection, and the law in Scottish non-denominational secondary schools. British Journal of Religious Education, 44(4), 512–527. DOI: 10.1080/ 01416200.2022.2036101 Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Snowling, M., C. Hulme, & K. Nation (2020). Defining and understanding dyslexia: Past, present and future. Oxford Review of Education, 46(4), 501–513. DOI: 10.1080/03054985.2020.1765756 Swift, J., & R. Fisher (2012). Choosing vocational education: Some views from young people in West Yorkshire. Research in Post-Compulsory Education, 17(2), 207–221. DOI: 10.1080/13596748.2012.673890 Wiliam, D. (2011). What is assessment for learning? Studies in Educational Evaluation, 37(1), 3–14. DOI: 10.1016/j.stueduc.2011.03.001 Woods, K., T. McCaldin, A. Hipkiss, B. Tyrrell, & M. Dawes (2019). Linking rights, needs, and fairness in high-stakes assessments and examinations. Oxford Review of Education, 45(1), 86–101. DOI: 10.1080/03054985.2018.1494555

9 Discussion Judicial pedagogies, coherence and Europeanisation

This chapter reviews the insights of the previous five chapters to consider their collective implications, since, as explained in Chapter 3, the research aim is to explore how ECtHR’s judicial pedagogies shape the Europeanisation of religions and beliefs in education. This aim was broken down into two research questions. What judicial pedagogies can be found in the ECtHR’s decisions? 1 2 How coherent are these judicial pedagogies? The first has been answered by the preceding analysis chapters (Chapters 4–8), so this chapter will consider the question of coherence, thereby addressing the second question, and then place these issues and assumptions within discussions of different forms of Europeanisation. Judicial pedagogies: models and metaphors In this section, each chapter is summarised in turn, and then their collective implications for the court’s pedagogical coherence as an aspect of the ECtHR’s “competence” (Perry-Hazan 2015, p. 719) are considered, particularly in the light of the coherence of the different models or metaphors of learning that they adopt (see Bruner 1996; Sfard 1998) – as discussed in Chapter 3. As a reminder, Bruner identified four different folk pedagogies: imitation or copying; didactic exposure; the child as thinker; the child as knower of distinct types of knowledge. Sfard drew attention to the distinction in educational research between metaphors of acquisition and participation. They both considered that variety was beneficial. Chapter 4 reviewed the key terms of education and indoctrination, together with commitment, drawing on the two benchmark cases of Campbell and Cosans v. UK,1 and Kjeldsen, Busk Madsen and Pedersen v. ­Denmark.2 These cases centred, respectively, on corporal punishment and sex education and raised some questions of educational philosophy. The ECtHR’s definition of DOI: 10.4324/9781003393276-9

154 Discussion education, in Campbell and Cosans, tended, as was noted, towards the communal, in contrast to its definition of teaching, which was individualistic. While the case expressly referred to transmission in defining both education and teaching or instruction which implies an acquisition model, the actual issue before the court, of the use of the tawse to beat pupils, is arguably participative since what is at stake is the pupils’ failure (or potential failure for Gordon Campbell) to follow the collective rules for approved participation: in a sense, Jeffrey Cosans was not participating correctly. The question of indoctrination in Kjeldsen raised various alternative pedagogical interpretations. It is not fully defined, and it has never been made clear if a breach of A2P1 is automatically indoctrination, or if indoctrination has a higher threshold. Both A9 and A2P1 assume that the child already has, or will come to have, personal knowledge of their own, in their or their parent’s religious convictions or other beliefs; the question is whether and how school-based knowledge interacts with this, by replacing it, putting it into question, or becoming the pupils’ base knowledge of these issues. Kjeldsen and Dojan v. Germany3 are about both the extent to which very young pupils should be taught sex education; the parents’ argument was that the school’s actions were potentially wrong in providing it, as the parents would have to undo what they considered were its deleterious effects. Both the Court, appellants and the schools assume that only one kind of knowledge is possible. However, at times, the Court was concerned with pupils’ informal learning about sex education, wanting to correct or remedy this, thereby intimating Bruner’s third model of pupil as knower, whose thought needed developing. Second, the issue of indoctrination can also be viewed as a tension between the school’s acquisition approach, in wanting the pupils to possess key facts about sex and relationships, and the parents’ fears that this is to all intents and purposes and invitation to participate in what they consider to be an unwholesome lifestyle. It is not the facts themselves that are at stake, but the behaviours that those facts signal. Different pedagogical assumptions are being made throughout these cases. The next debate, in Chapter 5, was about curriculum design, through consideration of Folgerø and others v. Norway,4 and the two Alevi cases, Hasan and Eylem Zengin v. Türkiye5 and Yalçin and others v. Türkiye.6 These required detailed analysis of the law, policy and curricular support material such as textbooks, to identify how different religions or branches of religions were treated, notably the representation of Alevism. In these cases, the requirement for a curriculum in compulsory religious education that is objective, critical and pluralistic was advanced (see Leigh 2012). All three cases concerned a set national curriculum, and tend towards an acquisition approach, in identifying the knowledge and skills that should be transmitted. The challenge is recognising how this knowledge sits against pupils’ personal knowledge, and that demand can be seen as expressing Bruner’s fourth model, in which pupils must interpretively hold their classroom

Discussion  155 learning separate from their own beliefs. Pupils no matter what their own religion or belief should have an understanding of both their convictions and those of others, and have an understanding of how to balance these two kinds of understandings. The issue in Folgerø can be seen in the light of Sfard’s distinction, in that the underlying legacy confessional model, which was still present in the new curriculum, was participative because it implied membership of the Church of Norway as an educative goal. The case therefore can be seen as being between metaphors for learning. The Alevi cases differed because the representation of Alevism within the allegedly objective, critical and pluralistic curriculum was at stake. Unlike Folgerø, the curriculum did not imply participative Sunniism, but it did set up, under Bruner’s fourth model, a false hermeneutic between Alevi pupils’ own beliefs and a misrepresentation of them in the national curriculum. Pupils would not simply be holding their own beliefs against an objective outsider’s view but against a false and unobjective outsider’s view of them. The analysis of the ECtHR’s view of teachers and teaching, in Chapter 6, considered Dahlab v. Switzerland7 under A9, and Fernández Martínez v. Spain8 under Article 8. These cases differed from others as neither involved A2P1, and both raised employment law issues. In Dahlab, the Court often adopted an acquisition metaphor, or Bruner’s second model of teaching, in that it was concerned with what she might have to say to pupils. The Court considered that she would be compelled to discuss the hijab because the pupils would ask unavoidable questions. However, the case can also be seen in the light of Bruner’s first model – imitation – in that the issue was partly whether pupils would copy her since they were “impressionable”, signalling, in the Court’s view, an inappropriate form of participation. In Fernández Martínez, a teacher’s authority to be a didactic teacher of Catholic religious education was in question. However, it was his own lack of proper participation (in the eyes of the church and courts) that called into question both his didactic role, and his role in enjoining the pupils to participate in confessional Catholic education. He would potentially model an inappropriate form of participation because he was critical of the church on various issues, and pupils might also adopt this critical participation. The three cases selected to consider the ECtHR’s views on learning in Chapter 7, Lautsi v. Italy,9 Perovy v. Russia,10 and Osmanoğlu and Kocabaş v Switzerland11, exposed judges’ pedagogies because they were not obviously about didactic teaching, i.e. Bruner’s second model or the acquisition metaphor. In Lautsi, the practice of hanging a crucifix in Italian state classrooms was reviewed, in Perovy, a classroom blessing was at stake, and in Osmanoğlu and Kocabaş, the purpose of swimming lessons. Several of Bruner’s models are implied in Lautsi. The initial Chamber opinion, holding that the crucifix was a breach, seems to assume that the crucifix could teach didactically of itself whereas the Grand Chamber distinguished the symbol’s effect and the

156 Discussion teacher’s role, insisting on the need for the latter. However, the Italian courts also alluded to the difference between Christian and non-Christian pupils, who would interpret it differently, in the light of their pre-existing opinions, and thereby implying Bruner’s third model. Christian pupils would see it as a Christian symbol, and the others would see it as a symbol of Italian civilisation, allowing each to think about it following their own convictions. Finally, Powers’ judgment pointed to the fourth model, with pupils learning to enter into dialogue with different forms of knowledge – as did remarks in Perovy v. Russia.12 Osmanoğlu can best be seen as a debate between two versions of Sfard’s metaphor of participation, since the parents were worried about the moral and religious effects of their daughters’ participation in mixed swimming lessons, and the authorities and the court insisted that participating together in learning to swim was as important as simply learning to swim. The next chapter (Chapter 8) focused on assessment, notably in Sanieski v. Poland13 and Grzelak v. Poland.14 While assessment generally assumes a didactic or acquisition approach, these cases can be read as an example of Sfard’s dichotomy between acquisition and participation. The report sheets in question in both cases would set out pupils’ marks in their various subjects, thereby indicating the extent to which they could be said to have acquired curricular knowledge and skills that year. The problem was that the absence of marks for ethics/religion indicated a lack of participation, which the appellants considered was harmful to them. Their concern was that wider Polish society, in which support for the Catholic church was strong, would treat their lack of participation with suspicion. The coherence of the ECtHR’s judicial pedagogies In commenting on the coherence of the ECtHR’s judicial pedagogies, the first key point is the complexity of its work across a diverse range of facts and issues. As Heise (2002) noted, courts do not choose the issues that come before them but simply respond to the cases and litigants that chance to arrive. This is particularly true of the ECtHR, which has found itself judging, as we have seen, on Alevism, crucifixes, Fastnacht, hijab, protests against clerical celibacy, report cards, opting-out provisions, sex education, swimming lessons, textbooks and classroom blessings. The preceding analysis chapters are only possible because the judges had to address these neither simple nor trivial issues. The curriculum cases particularly show the depth of judicial scrutiny of different documentation and reflect serious pedagogical engagement. As noted, there is little evidence of any specific education or training for judges themselves in tackling these issues, and they address the issues deliberatively. One aspect of coherence would be in terms of whether the same judges heard the various cases. Although the aim here is not to conduct an analysis of all the judges from all the relevant cases, there is a degree of overlap.

Discussion  157 As noted in Chapter 4, only Ryssdahl was sitting in both Campbell and Cosans and Kjeldsen. In the later cases, several judges heard two or more, for instance: Jean-Paul Costa (France) heard Saniewski (as president), Zengin (as president), Folgerø and Lautsi; Dean Speilmann (Luxembourg) heard Folgerø, Dojan (as president), and Fernández Martínez (as president, but a dissenting judgment); Giovanni Bonello (Malta) heard Dahlab, Grzelak and Lautsi. While it seems reasonable to infer some resulting expertise, the decisions do not always suggest pedagogical consistency. Ann Power-Forde (Ireland), who so eloquently proposed dialogical learning also heard Fernández Martínez, where she followed the majority decision on the duty of teachers to follow the Church’s authority. Indeed, the key finding is the lack of a coherent pedagogical approach. This is partly a function of the variety of cases that appear before it, but even within one case, or between thematically related cases (e.g., Folgerø, Zengin and Yalçin), assumptions vary despite the fact that earlier cases could provide a precedent. Decisions shift across different models and metaphors. In Lautsi, the decisions vary between holding that crucifixes are didactic in themselves, that explicit didactic teaching is required, and that students learn through holding various kinds of knowledge together. These are not fully recognised as different pedagogies by the judges and can appear as separate or dissenting opinions. Judge Powers’ separate opinion for a dialogical approach is pedagogically different from the didactic theory of latent symbols adopted in the majority judgment: A truly pluralist education involves exposure to a variety of different ideas including those which are different from one’s own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. (Lautsi, Powers’ concurring judgment) This is, pedagogically speaking, not a concurring judgment but a different view of learning; it comes closest to truly pedagogical analysis. However, translating hers into practice would require considerable revision of several countries’ curricula, since it takes fuller account of how students know than many national curricula currently envisage. The principles in Lautsi have clear implications for Dahlab, on the presence of symbols, and have been discussed in relation to this, but they also have implications for Fernández Martínez, in presenting a different view of the teacher’s role, as an orchestrator of dialogue and different points of view. In this approach, a dissenting voice within a tradition is not excluded, as the teachers’ role is not to represent a particular perspective but to model how different opinions are held within a community. For Bruner and Sfard, these different approaches are an inevitable part of teaching and educational research, and they argued that education and

158 Discussion research were richer for this variety, but in a judicial context, this overabundance is problematic. For a court, a unified view is needed if it is to be educationally competent, in the sense of their understanding of the issues (see Chapter 3). Variation speaks to ambiguity, making judgments less sound than they could be if they were more coherent. The ECtHR’s approach is based on the facts from one school and national setting, and which then becomes binding across Europe, but if the ECtHR’s own pedagogy in the decision is unclear, it could be difficult to apply in different countries. This can be seen in Osmanoğlu and Kocabaş, a case based on Swiss assumptions about teaching and learning was heard by judges from Andorra, Cyprus, Serbia, Slovakia, Spain, Sweden and Switzerland. This judgement applies in all contracting states, such as France, Norway or Türkiye, but which may have a different approach to both Switzerland and the decision itself as to how they teach generally, teach physical education, or perceive its value and function. One important aspect of this decision was that the girls were allowed – indeed encouraged by the school – to wear a burkini, so that options were being provided. In France, however, this would be unlikely given the French disapproval of the burkini in public, so that parents there could be confronted with starker choices. Indeed, the application of new ECtHR law in a country which has been a party to an earlier appeal may well be complex, for instance, the implications for Norway, having lost in Folgerø, to the decisions in Zengin and Yalçin. Further, almost identical facts can lead to different conclusions. This is shown in the two Polish report card cases, Saniewski and Grzelak. What initially looked to be the same question of marks on a report card became distinguished because the report card had distinct functions at different stages of schooling, so that its use within the school system became important. In Saniewski, its putative use was in showing it to external bodies that might be prejudiced as a result; in Grzelak, its use was also considered internal, for the school itself, or in grading and streaming. In other school systems, with different reporting practices, the approach might be different again. Also, in Grzelak, the main judgment wrongly assumed that pupils might feel they should take the subject to boost their average grade, but in systems that do not have an average grade, this argument would be irrelevant; in such systems, it could therefore hypothetically be possible to have a blank when a pupil had opted out of religious education. Further, much emphasis was placed on the strength of Catholic affiliation in Poland, though no evidence was given for this; in a more agnostic and atheist society, this might not carry weight, for instance, in England, which allows pupils to opt out of pluralistic religious education (see Lundie & O’Siochru 2021), it would be hard to argue that a blank for religious education in a pupil’s report card would be negatively perceived by school staff, potential employers or those in higher education.

Discussion  159 The ECtHR’s lack of coherence also means that wider debates, notably about the Court’s approach to religion and belief more generally, are open to question. For example, the framing of state neutrality by the ECtHR across all aspects of religious diversity is both imposed on and built out of a view of pedagogy, and Ringelheim (2017) has sought “to cast light on how the ECtHR has developed and construed the concept of states’ denominational neutrality. It will be demonstrated that diverging conceptions of this notion coexist in its case law and that this creates problems” (p. 26). She drew on various educational cases, including Lautsi, Folgerø and Dahlab to develop a sequence of models of neutrality, respectively: “‘neutrality as absence of coercion’, ‘neutrality as absence of preference’, and ‘neutrality as exclusion of religion from the public sphere’” (p. 27). She then argued that “the Court’s approach to the principle of state neutrality has become increasingly blurred and fragmented” (p. 45) between these different models. From an educational perspective, this blurred fragmentation is unsurprising since these cases arise out of different educational contexts and issues, and because underlying judicial pedagogies are not made explicit. Further, any attempt to develop a theoretical model of neutrality that does not pay attention to pedagogical issues may well fail when confronted with new pedagogical challenges. Even an apparently similar repeat of an old issue, as in Saniewski and Grzelak, can be found to be pedagogically, or assessment-wise, different. This challenge would extend to wider discussions about neutrality across European law. Hunter-Henin (2022) argued for a wider view of the European highest courts’ views of neutrality, in both ECtHR and ECJ, notably drawing on recent employment law decisions. She argued that the principle of religious neutrality has tended to hide religious affiliation, negating these courts’ democratic role, which “requires judges, including supranational European judges, to offer a forum where all can be seen and heard” (p. 46). The challenge is in working this principle through the different educational and non-educational issues, models and metaphors. There is a danger of treating all public spaces as essentially the same because schools (and their classrooms) uniquely offer pedagogical demands and opportunities that must be addressed on their own educational terms. ECtHR and the Europeanisation of religions and beliefs in education Discussion of the ECtHR’s decisions in the context of other European supranational courts leads us to consider how these decisions sit within wider law and policymaking on education across Europe. This is framed in relation to Schreiner’s comment (see Chapter 2), contrasting two forms of Europeanisation, religious education and education more generally:

160 Discussion [T]he Europeanisation of education means the emergence of European education policy which has developed out of cultural policy approaches into a network of mutual support, in which comparisons and hard data are central. When we talk about Europeanisation and standardisation regarding religious education, we mean questions about shared quality features, about content, and about goals that should be applied to existing models and approaches. (Schreiner 2016, p. 368) The analysis here supports Schreiner in arguing that the Europeanisation of religious education is not the same form as that of other education. However, his comment does not take full account of the ECtHR’s role in shaping the field, since its decisions as law go far beyond being “cultural policy approaches” and do more than simply create “shared quality features, content or goals”. One initial difference to Schreiner’s position is reframing the issue as wider than simply religious education, and instead being about religions and beliefs in education, not least because several cases are about these wider considerations; however, even so, several cases are about curriculum. The key difference between the Europeanisation of religions and beliefs in education and the Europeanisation of education generally is that the former is highly litigated at a supranational level, whereas the latter is largely not. As noted, general educational issues and topics have long been the focus of supranational policy from the Council, and the EU, OSCE and OECD. The most significant moments are arguably the creation of the European Higher Education Area in 1999, and the European Education Area in 2017. There has also been a steady stream of guidance on assorted topics (e.g., Council of Europe 2008; Peterson 1971; Salmon 1976; and see Grimonprez 2020). However, there is scant case law to consider, though exceptions are around sex education (Kjeldsen, Dojan), prison education (e.g., Jankovskis v. Lithuania15) and inclusion (e.g., Dupin v. France16). The Europeanisation of religions and beliefs in education has proceeded differently, in that it has flowed from both supranational policy organisations and the ECtHR, i.e., through an executive and a judiciary, as a twin-stranded process. Policy organisations started addressing religious education in the 2000s, notably the OSCE/ODIHR (2007) and the Council (Jackson 2014a; Keast 2007). As noted in Chapter 2, the Council termed it the “religious dimension of intercultural education” (Jackson & O’Grady 2019, p. 247; see Jackson 2014b, 2018) and linked it with diversity and democratic competences (Council of Europe 2008, 2014, 2016a, 2016b). This work, however, does not operate within an empty space, but within the limits set by the ECtHR’s judgments (ECtHR 2022a, 2022b), often decided long before, notably in the Kjeldsen principles. The nature of the inter-relationship between judicial decisions and other policies is outside this study’s scope,

Discussion  161 though while A9 underpins the Council’s White Paper on intercultural dialogue (Council of Europe 2008), it is surprising that one teaching guide (Keast 2007) does not mention the ECtHR’s decisions, and the other (Jackson 2014a) only summarises the law in one page (see p. 84). Further, while many policy documents argue for respect and tolerance, the ECtHR’s decisions may appear to many to undermine these goals, notably on the treatment of Muslims in Western Europe, in Dahlab and Osmanoğlu and Kocabaş – an important issue given the extent of Islamophobia in Europe (Bayrakli & Hafez 2022). This twin-stranded process has three features. First, different Europes may be at stake. The ECtHR, as noted previously, has jurisdiction over 46 signatory states, whereas the European Union only includes 27 states; the OSCE has 57 participating states, though not all in Europe. For example, Türkiye and Switzerland, which have been respondents in some leading cases, are not within the EU, so these countries are not directly part of the new European Educational Space, though Switzerland has special arrangements. Moreover, the EU has rarely paid attention to questions of religions and beliefs in education in its policy. It is therefore here that a lacuna in research on the Europeanisation of education lies since researchers in this field tend to highlight the centralising governance of education through policy framing and outcomes monitoring (Dale 2009; Lawn & Grek 2012; Normand 2016), rather than identifying how a judicial human rights dimension takes effect. Second, the nature of the relationship between the ECtHR and the signatory states differs from that of the EU and its member states, or even with how the Council interacts with its members. The ECtHR makes a judgment that is directly about one member state, rooted in that state’s educational context. Thus, the Polish assessment cases require understanding the purposes of assessment in Poland and national religious demographics, while Fernández Martínez requires grasping Spanish church-state employment provisions. Other countries are affected by a judgment, and seek representation in the ECtHR, as in Lautsi, but their educational systems are unscrutinised. The final decision will have major implications for the respondent country and have effects across the continent, and this oscillation from the particular to the pan-European is formidable. By contrast, for the EU, or even the Council, policies are automatically drafted at a European level, able to assess implications in other countries, and not made based on one context. They may consider or report on a particular state, but no one state will be their central focus. Third, the process of Europeanisation also needs to include an understanding of the process of the “radiating effects” of the Court’s judgments, which, “produce not only decisions, but messages. These messages are resources that parties use in envisioning, devising, pursuing, negotiating,

162 Discussion vindicating claims (and in avoiding, defending, and defeating them)” (Galanter 1983, p. 126). Commentators have considered how a decision by the ECtHR can be deployed by activist groups in other countries, through “legal mobilisation” (Fokas and Anagnostou, 2019, p. S9). For instance, Popa and Andreescu (2019) consider how diverse groups in Romania have invoked and deployed the Court’s decision in Lautsi to support vastly different claims. The ECtHR’s decisions have implications for both states and individuals in those states, in ways that softer policy does not. Indeed, this mobilisation is itself a form of Europeanisation, in which the debate becomes about human rights. However, a key educational question is whether the respondent state’s pedagogical context matches the other state’s educational context and whether the judicial pedagogies apply effectively to both. Thus, a state may operate with a set of pedagogical assumptions (X), on which the ECtHR imposes a decision with its own judicial pedagogies (Y), and which gets taken up in another country, with different assumptions (Z). However, the situation is more complex because as the earlier chapters have shown, the cases often contain different collections of pedagogies, so the example is more akin to a respondent state with a set of educational principles (let us call them A and B), decided upon by a set of partially different judicial pedagogies (B, C and D), which are then taken up in another country which has operated under some similar principles (A and C), but in which campaigners argue for others (B, D and E). For example, the decision in Lautsi was based on the situation in Italy, and the judges held that the crucifix did not teach of itself and/or was part of a dialogical teaching. In Romania, this could either be seen as an argument for the continued presence of icons in schools, in a post-communist flourishing of the Orthodox Church in education as part of Romanian identity, or for the adoption of a multifaith approach with different images and symbols as part of a pluralist society. Thus, a court decision has a direct, vertical effect on the respondent state, but unpredictable implications elsewhere. If the Europeanisation of education generally is, as Schreiner suggested, through cultural policy approaches, then the Europeanisation of religions and beliefs in education is at least partly through judicial decision-making. The Europeanising harmonisation of policies between states “is primarily to increase the quality and effectiveness of education and training so as to be globally competitive as an economic area” (Schreiner 2016, p. 370).17 The ECtHR’s decisions, by contrast, are to uphold human rights, not to work towards global economic competitiveness. However, it could also be argued that current research on the Europeanisation of education has not adequately addressed this important and distinctive strand in the Europeanisation of religions and beliefs in education. Scholars of generic Europeanisation often adopt the policymakers‘ own blind spot, and a fuller understanding of how both forms of Europeanisation operate in parallel is needed; one is arguably

Discussion  163 founded on economic liberalism, or even neoliberalism, and the other on cultural and political liberalism, but whether they are in tension or part of a wider liberal project is open for further study (see Michéa 2007). Further, if this argument has supported Schreiner’s (2016) claim that the Europeanisation of religious education is unlike the generic Europeanisation of education, it has nevertheless called into question his claim that this simply concerns “shared quality features, about content, and about goals that should be applied to existing models and approaches” (p. 368). While it is true that the case law described here could be skeletally summarised in these terms, there is much more at stake when the ECtHR is involved. This is not least since its decisions are about how some fundamental human rights are implicated in schools, classrooms and swimming pools. Moreover, the specific curriculum subject is enmeshed in wider claims about the constitution, classroom symbols, teachers’ rights, school report cards, sex education or the celebration of rituals and festivals, so these quality features often sit within wider legal considerations, but considerations which will involve judicial pedagogies in the ECtHR. These are not simply issues for the ECtHR alone since appellants must exhaust their domestic remedies before they can appeal to Strasbourg. As noted, the cases described all made their way through the national courts. Human rights are written into national laws, so will arise as cases progress a matter of national jurisprudence, but also the ECtHR’s previous decisions will be precedents for national judges, but who will perforce rely on their own judicial pedagogy. In Türkiye, the decision in Zengin was part of the national courts’ precedents in Yalcin, and both now frame the legal and policy landscape in Türkiye, albeit confusingly, since “local administrative courts tend to give contradictory judgments on the issue” (Kaymakcan & Hendek 2022, p. 451). Further, these judgments apply across Europe, and so decisions in other countries are affected, but differentially. Hendek and Fancourt (2021) compare the differing responses to Zengin and Yalçin in Türkiye and England. For example, the English courts and policymakers only started considering the Zengin assumptions in 2015. First, in R (Fox et al.) v. Secretary of State for Education,18 on the presence of non-religious worldviews in religious education, Mr Justice Warby relied on his own assumptions about curriculum, teaching and learning. Then, as Wareham (2022) showed, this case became an argument for new policy in Wales, and for wider campaigns to include non-religious worldviews in the curriculum in England, in an example of legal mobilisation. Then, in 2023, the position of Humanists in curriculum decision-making was addressed in R. (Bowen) v. Kent County Council,19 which also drew on the Strasbourg judgments. The Europeanisation of religions and beliefs in education is therefore both complex in domestic law and policy, and geographically uneven.

164 Discussion Recognition of the twin strands of the courts and the policymakers is also to identify their differences. The ECtHR’s influence through its decisions and its judicial pedagogies, however variable, is not the same as the policy work of the Council of Europe or EU. As noted in this chapter, the ECtHR’s educational competence needs consideration and then how its decisions interweave with supranational policy because there are dangers in assuming the supranational organisations say the same thing or have one simple position or set of values, as noted in Chapter 2. For example, Arthur (2011, p. 75) argues that the [ECtHR], which is an institution of the Council, also uses what it deems to be ‘neutral’ and ‘abstract values’ derived from the ECHR, another product of the Council, in its proceedings, which increasingly clash with cultural and religious conceptions and practices thus confusing their voices and roles. However, there are three dangers to such confusion. One is blurring the ECtHR’s post-hoc judicial role as a court of final appeal after national remedies have been exhausted with the Council’s future-oriented policymaking. The second is in criticising an alleged tension between the Court’s values and “cultural or religious conceptions and practices” (Arthur 2011, p. 75) given litigation is inevitably a clash between different values or principles, whether between different religious positions (e.g., in Dojan, between Fastnacht traditions and the parents’ religious objections, or in the Turkish Alevi cases), between religions and non-religions (e.g., in Folgero, over a humanist pupil’s right to opt out of confessional religious education, or Lautsi, over atheist pupils’ right not to be educated under the crucifix), or between state-defined secularism and religiosity (e.g., in Dahlab, over the wearing of hijab as a teacher). That is how courts work, and the Court’s role is to decide upon the issue, requiring procedural values, as for any court. Last, it runs the risk of not getting beyond simple and misleading labels, such as ‘neutral’ or secular’, because the underlying pedagogical work is overlooked. These are not simply issues of governance of religious diversity (see Koenig 2015), but also of educational governance. A vital role for research is therefore to understand the differences in approach between the two forms of Europeanisation, the inter-relationship between the two strands of Europeanisation of religions and belief in education, and indeed how these are manifested at national or local levels. Schweitzer and Schreiner (2020) have argued for more research on international knowledge transfer in religious education, in considering if the research findings have “universal validity” or are simply “regional practices”. The nature and effects of Europeanisation are clearly topics that would automatically sit between these two ends of the spectrum. The ECtHR

Discussion  165 creates a space that is at least international in nature through rulings that apply across Europe, but paradoxically, the different national approaches to the subject, the result of complex socio-political geographies and histories, mean that it is perhaps the most contextually responsive subject in the curriculum. Conclusion This chapter reflected on how ECtHR’s judicial pedagogies shape the Europeanisation of religions and beliefs in education. The preceding five chapters were reviewed particularly through the lenses of Bruner’s models and Sfard’s metaphors for learning, showing how judges often made quite different claims and assumptions. This variation suggested that the ECtHR’s educational competence was at times unstable because different models or metaphors were being deployed incoherently. The judgments themselves could be difficult to implement directly both because of this variation and because different assumptions might apply in other states to the respondent in the litigation. Then, the wider aim was reviewed, and supported Schreiner’s claim that this Europeanisation of religions and beliefs developed differently to other more generic forms of Europeanisation. However, the ECtHR should be seen to have an important role, alongside policy networks. The next chapter will set out some broader conclusions, particularly concerning the application of the notion of judicial pedagogies in other jurisdictional settings. Notes 1 Campbell and Cosans v. The United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 2 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509. 3 Dojan and others v. Germany (dec.), nos. 319/08 and 4 others, 13 September 2011. https://hudoc.echr.coe.int/eng?i=001-106382. 4 Folgerø and others v. Norway, no. 15472/02, ECHR 2007-III. https://hudoc. echr.coe.int/eng?i=001-81356. 5 Hasan and Eylem Zengin v. Türkiye, no. 1448/04, 9 October 2007. https:// hudoc.echr.coe.int/eng?i=001-81356. 6 Mansur Yalçın and others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-81356. 7 Dahlab v. Switzerland, Application no. 42393/98 (2001). https://hudoc.echr. coe.int/eng?i=001-22643 8 Fernández Martínez v. Spain 56030/07 – [GC] [2014] ECHR 615, [2014] ECHR 886. https://hudoc.echr.coe.int/eng?i=001-145068. 9 Lautsi and others v. Italy [GC], no. 30814/06, ECHR 2011. https://hudoc. echr.coe.int/eng?i=001-104040. 10 Perovy v. Russia, no. 47429/09, ECHR 2020. https://hudoc.echr.coe.int/ fre?i=001-205133.

166 Discussion 11 Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, 10 January 2017. https://hudoc.echr.coe.int/eng?i=001-170436. 12 Perovy v. Russia, no. 47429/09, 20 October 2020. https://hudoc.echr.coe. int/eng?i=001-205133. 13 Saniewski v. Poland Application no. 40319/98, judgment of 26 June 2001. https://hudoc.echr.coe.int/eng?i=001-5956. 14 Grzelak v. Poland, no. 7710/02, ECtHR (Fourth Section), 22. https://hudoc. echr.coe.int/eng?i=001-99384. 15 Jankovskis v. Lithuania, no. 21575/08, 17 January 2017. https://hudoc.echr. coe.int/eng?i=001-170354. 16 Dupin v. France, 2282/17, 18 December 2018. https://hudoc.echr.coe.int/ eng?i=002-12340. 17 Original: “Das Ziel ist dabei zuvörderst, die Qualität und die Wirksamkeit von Bildung und Ausbildung zu erhöhen, um als Wirtschaftsraum global konkurrenzfähig zu sein” translation NF. 18 R (Fox et al) v. Secretary of State for Education [2015] EWHC 3404 (Admin). https://www.judiciary.uk/wp-content/uploads/2015/11/r-fox-v-ssfe.pdf. 19 Bowen, R (On the Application Of) v Kent County Council [2023] EWHC 1261 (Admin) (26 May 2023) https://www.bailii.org/ew/cases/EWHC/Admin/ 2023/1261.html.

References Arthur, J. (2011). Intercultural versus interreligious dialogue in a pluralist Europe. Policy Futures in Education, 9(1), 74–80. DOI: 10.2304/pfie.2011.9.1.74 Bayrakli, E., & F. Hafez (eds.). (2022). European Islamophobia report 2022. Leopold Weiss Institute. https://islamophobiareport.com/islamophobiareport-2022.pdf Bruner, J. (1996). Folk pedagogy. In The culture of education (pp. 44–65). Harvard University Press. DOI: 10.2307/j.ctv136c601.5 Council of Europe (2008). White paper on intercultural dialogue: Living together as equals in dignity. Council of Europe. Council of Europe (2014). Education et diversité religieuse en Méditerranée occidentale. [Education and religious diversity in the Western Mediterranean]. Council of Europe. Council of Europe (2016a). Competences for democratic culture - Living together as equals in culturally diverse democratic societies. Council of Europe. Council of Europe (2016b). Compilation of Council of Europe standards relating to the principles of freedom of thought, conscience and religion and links to other human rights. Council of Europe. European Court of Human Rights. (2022a). Guide on Article 2 of Protocol no. 1 to the European convention on human rights: Right to education. https://echr.coe.int/ documents/guide_art_2_protocol_1_eng.pdf European Court of Human Rights. (2022b). Guide on Article 9 of the European convention on human rights: Freedom of thought, conscience and religion. https:// echr.coe.int/Documents/Guide_Art_9_ENG.pdf Fokas, E., & D. Anagnostou (2019). The “radiating effects” of the ECtHR on social mobilizations around religion and education in Europe: An analytical frame. Politics and Religion, 12(S1), S9–S30. DOI: 10.1017/S1755048318000445

Discussion  167 Galanter, M. (1983). The radiating effects of courts. In K. Boyum & L. Mather (eds.), Empirical theories about courts (pp. 117–142). Longman. Grimonprez, K. (2020). The European Union and education for democratic citizenship: Legal foundations for EU learning at school. Luxembourg Legal Studies. Heise, M. (2002). The courts, education policy, and unintended consequences. Cornell Journal of Law & Public Policy, 11, 633–662. Hendek, A., & N. Fancourt. (2021). The effects of judgments by the European Court of Human Rights on religious education in England and Turkey. Religion & Education, 48(4), 436–457. DOI: 10.1080/15507394.2021.1961658 Hunter-Henin, M. (2022). Religious neutrality at Europe’s highest courts: Shifting strategies, Oxford Journal of Law and Religion. rwac012. DOI: 10.1093/ojlr/ rwac012 Jackson, R. (2014a). Signposts - Policy and practice for teaching about religions and non-religious world views in intercultural education. Council of Europe. Jackson, R. (2014b). The development and dissemination of Council of Europe policy on education about religions and non-religious convictions. Journal of Beliefs & Values, 35(2), 133–143. DOI: 10.1080/13617672.2014.953295 Jackson, R. (2018). Human rights in relation to education about religions and world views: The contribution of the Council of Europe to classroom religious education. Journal of Religious Education, 66, 85–97. DOI: 10.1007/s40839-018-0062-z Jackson, R., & K. O’Grady. (2019). The religious and worldview dimension of intercultural education: The Council of Europe’s contribution. Intercultural Education, 30(3), 247–259. DOI: 10.1080/14675986.2018.1539306 Kaymakcan, R., & A. Hendek. (2022). European Court of Human Rights’ judgements and compulsory religious education in Turkey. British Journal of Religious Education, 44(4), 444–454. DOI: 10.1080/01416200.2022.2045901 Keast, J. (ed.). (2007). Religious diversity and intercultural education: a reference book for schools. Council of Europe. Koenig, M. (2015). The governance of religious diversity at the European Court of Human Rights. In J. Boulden & W. Kymlicka (eds.), International approaches to governing ethnic diversity (pp. 51–78). Oxford University Press. Lawn, M., & S. Grek (2012). Europeanizing education: Governing a new policy space. Symposium. Leigh, I. (2012). Objective, critical and pluralistic? Religious education and human rights in the European public sphere. In L. Zucca & C. Ungureanu (eds.), Law, state and religion in the new Europe: Debates and dilemmas (pp. 192–214). Cambridge University Press. Lundie, D., & C. O’Siochru. (2021). The right of withdrawal from religious education in England: School leaders’ beliefs, experiences and understandings of policy and practice. British Journal of Religious Education, 43(2), 161–173. DOI: 10.1080/01416200.2019.1628706 Michéa, J.-C. (2007). L’empire du moindre mal: Essai sur la civilisation libérale. [The empire of the least bad: Essay on liberal civilisation]. Flammarion. Normand, R. (2016). The changing epitemic governance of European education: The fabrication of the Homo Academicus Europeanus? Springer. OSCE/ODIHR. (2007). Toledo guiding principles on teaching about religions and beliefs in public schools. OSCE/ODIHR.

168 Discussion Perry-Hazan, L. (2015). Court-led educational reforms in political third rails: Lessons from the litigation over ultra-religious Jewish schools in Israel. Journal of Education Policy, 30(5), 713–746. DOI: 10.1080/02680939.2014.987829 Peterson, A. (1971). New techniques for assessment of pupils’ work. Committee for General and Technical Education. Popa, M., & Andreescu, L. (2019). Religion and education in Romania: Social mobilization and the “shadow” of the European court of human rights. Politics and Religion, 12(S1), S79–S102. DOI: 10.1017/S1755048318000068 Ringelheim, J. (2017). State religious neutrality as a common European standard? Reappraising the European Court of Human Rights approach. Oxford Journal of Law and Religion, 6(1) 24–47. https://doi.org.ezproxy-prd.bodleian.ox.ac. uk/10.1093/ojlr/rww060 Salmon, M. (1976). Present situation of and trends in tertiary education in Europe: A report of the 32nd meeting of the Council of Europe’s Committee for Higher Education and Research held in Strasbourg on 5–7th November, 1975. Council of Europe. Schreiner, P. (2016). Europäisierung religiöser Bildung? Religionspädagogik und internationale Standardisierungsprozesse. [Europeanisation of religious development? Religious education and international standard setting processes]. Zeitschrift für Pädagogik und Theologie, 68(3), 367–380. DOI: 2102/10.1515/zpt-2016-0037 Schweitzer, F., & P. Schreiner (2020). International knowledge transfer in religious education: Universal validity or regional practices? Backgrounds, considerations and open questions concerning a new debate. British Journal of Religious Education, 42(4), 381–390. DOI: 10.1080/01416200.2019.1701987 Sfard, A. (1998). On two metaphors for learning and the dangers of choosing just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Wareham, R. (2022). Achieving pluralism? A critical analysis of the inclusion of nonreligious worldviews in RE policy in England and Wales after R (Fox) v Secretary of State for Education. British Journal of Religious Education, 44(4), 455–471. DOI: 10.1080/01416200.2022.2027344

10 Conclusion Investigating judicial pedagogies internationally

This chapter considers the value of investigating judicial pedagogies further, for the ECtHR in Europe, and globally. As the previous chapters have shown, the concept and the analysis allow for a distinct perspective on judicial decision-making that highlights educational assumptions rather than jurisprudence, political philosophies or constitutional arrangements. The previous chapters have considered judges’ positioning in the light of the distinctive features of educational philosophy, and theories of curriculum, teaching, learning and assessment. They have also been reviewed through the lenses of Bruner’s (1996) and Sfard’s (1998) work. The first section will consider further work that could be done within the European context. The second section will look beyond Europe, delving into case law in the US and South Africa that show how judges there have their own judicial pedagogies. The third section will pick up the discussion of judicial education in Chapter 2, in considering the potential for this theory to contribute to judicial education and therefore indirectly to their decision-making. In some final remarks, we return to the pupils and parents at the heart of these cases. Further studies of judicial pedagogies in Europe This study has shown the depth and variability of judicial pedagogies by adopting a systematic approach to educational theory and then looking for its components in contrasting cases. The advantage of this approach is in showing the range across these components, such as teaching or assessment. This approach was also selected in order to ensure that there was space to discuss specific cases individually, thereby revealing how their educational dimensions are manifested in the law, facts and arguments. It will however be apparent that many of the cases may be relevant to different components of educational theory; for example, the curriculum cases are also relevant to learning. Other cases have not been discussed fully, such as Dogru v. France,1

DOI: 10.4324/9781003393276-10

170 Conclusion concerning a pupil who refused to remove her hijab for physical education lessons, and so a more detailed and rigorous focus on one component, for example, learning, across a broader selection of cases would be insightful. Another approach would be to consider if case law has developed coherently from a pedagogical perspective. For example, the Kjeldsen principles2 have become the key precedent for discussion of A2P1, but they may not always be applied with the same pedagogical pedagogies, and not least because sex education is arguably premised on different principles to religious education. A fundamental point is in the recognition of the learners’ prior knowledge. Students’ own religious perspectives are fundamental to A2P1, but their personal perspectives on gender, sex and sexuality may not be similarly recognised as valid. One theme of the previous chapter was the interrelationship between the ECtHR, the Council and other supranational organisations, and a more thorough consideration of this interrelationship is needed. The Toledo principles (OSCE/ODIHR 2007) are referred to in several cases, notably Yalçin v. Türkiye,3 where the appellants presented an expert review of the Turkish curriculum: According to the Toledo principles, teaching about religions should be sensitive, balanced, inclusive, non-doctrinal, impartial, and based on human rights principles relating to freedom of religion or belief. (Paragraph 20) This summary was adopted in the judgment, in Paragraph 71, along with other expert reports, and so the inter-relationship between decision and policy could be better disaggregated, in tracking when and how these documents and judgments interact. Answering these questions would also permit a reappraisal of wider arguments about the political philosophies of the Court and of European institutions more generally. First, as noted previously, there is a danger in jumping to constitutional conclusions when it is only classroom practice that is at stake. Rather than simply reading a decision as being for or against secularism, religious minorities or tradition (Benhabib 2010; Bhuta 2014; Temperman 2012), the judicial pedagogies could also be considered more carefully. Lautsi4 for example can be superficially read as simply upholding European Christian tradition, but the majority decision validates any classroom symbol, and Powers’ separate judgment on dialogue could also imply a much wider pluralistic position, as does Judge Rozakis’s view that more than one has a neutralising effect. Plenty of classrooms have a range of religious symbols on display, but the meaning of this range is equivocal educationally, and this nuance can get drowned out by discussion of different political philosophies. Second, the different forms of Europeanisation could be investigated,

Conclusion  171 and their interconnections, for example, how the EU or OECD’s neoliberal vision of transnational employability sits alongside the Court’s right-based approach, whether in tension or harmony; further, their different pedagogies could also be considered. A better understanding of pedagogy could add greater nuance to recent reappraisals of the Court’s neutrality, such as Ringelheim (2017) and Hunter-Henin (2022), by recognising that educational neutrality might operate differently from neutrality in other public spaces. Neutrality in one setting might not be the same as neutrality in another, even if they share some common features. Indeed, the ECtHR’s recent confusion in Papageorgiou as to the potential differences between religious instruction, education or studies speaks to this. Further, the Court’s own neutrality or what Hunter-Henin (2022) terms “neutrality by ricochet” (p. 28) could also be implicated in this process. At the same time, the Court’s principle of the “margin of appreciation”, i.e., the extent to which it accepts that states interpret human rights obligations in their own way, may also fall differently. More broadly, judicial pedagogies are not limited to religion in education, and the ECtHR must decide more generally on the right to education, under the first arm of A2P1. For instance, Arslan and Bİngöl v. Türkiye5 concerned whether the right to education meant that two prisoners, the appellants, could be permitted computers and the internet in order to access online university courses; the Court commented that education “is a very particular type of public service which not only benefits those using it but also serves broader societal functions” (Paragraph 57). This echoes the discussion in Campbell and Cosans v. UK6 on the nature of education (see Chapter 4), and indeed Russell’s (1977) tension between education as serving individual or societal purposes. Consideration of all A2P1 cases, whether about access to education generally or issues of religion and belief under the second limb, would potentially support a broader understanding of the Court’s assumptions. There is clearly scope for further analysis of these issues and other texts. Judicial pedagogies internationally A second line of inquiry would be to consider the position in other jurisdictions since the concept is not limited to the European setting. The most obvious context for such an analysis would be the US, in which litigation on religion in education is long-standing, as is litigation on education more generally, discussed in Chapter 2. Judicial pedagogies may also be important in states where the courts are an important plank of post-colonial nationbuilding, and an example of a student who wore a nose-stud to school in South Africa is considered.

172 Conclusion Judicial pedagogies in the US courts

As Russo (2012) observed, “[t]he opening 16 words of the First Amendment to the Constitution have generated more litigation involving elementary and secondary schools, whether public or non-public, than any other words in the Constitution” (p. xvii). This litigation has covered school financing, transport, the teaching of evolution and creation, and religious symbols and rituals in schools (see Russo 2012; Superfine 2009). The leading case law has developed over the years, but notably in Lemon v. Kutzman, in 1971,7 which set a threefold test (the Lemon test) for state statutes: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion”. (Russo, 2012, pp. 612–613) These elements raise various pedagogical challenges since education is not explicitly mentioned. It is unclear: whether an educational purpose would automatically be secular or not; how advancing or inhibiting religion would be shown; what “excessive” entanglement means. One relevant case is Jones v. Clear Creek Independent School District,8 in 1992, concerning whether student-led prayers could be said at a graduation ceremony if students had voted on the issue (see McCarthy 2014). Concluding that they could, the Circuit Court judge stated: …the Establishment Clause forbids the imposition of religion through public education. That leads to difficulty because of public schools’ responsibility to develop pupils’ character and decision-making skills, a responsibility more important in a society suffering from parental failure. If religion be the foundation, or at least relevant to these functions and to the education of the young, as is widely believed, it follows that religious thought should not be excluded as irrelevant to public education. Various pedagogical claims are made here. First is the identification of both character development and decision-making as worthwhile educational goals. This division of education into moral and cognitive features is common enough, though decision-making may imply practical wisdom or phronesis, rather than simply a process of deciding on the right answer to a cognitive question (see Chapter 4). Next, schools’ heightened responsibility for these is emphasised, in the context of the (alleged) social malaise of poor parenting. However, there are further assumptions here: that parenting itself ordinarily includes the responsibilities of moral development and

Conclusion  173 reasoning; that schools can and should assume this role for themselves because their pupils otherwise will not receive it. Alternatively, the meaning could be that these aims should be addressed in education now in order to avoid the students’ failing as parents in the future; it is unclear if the students have suffered from poor parenting or are at risk of becoming poor parents themselves – or both. Next, the judgment identifies “religion as the foundation of ” these responsibilities. This is a strong claim and is unsurprisingly softened by the addition of “at least relevant to”. The judgment then takes an odd turn since this founding or relevance is in relation not only to character development and decision-making, but “and to the education of the young” (emphasis added). This implies that these first two functions are not necessarily part of education, and begs the question as to what education is, for instance, whether the court here had a purely instructional view of education in mind (see Chapter 4). From this claim, the judge argued that “religious thought” could not be considered irrelevant, although relevance was not in the Lemon test. The final pedagogical challenge is understanding how hearing a prayer at graduation would thereby contribute to character development and decision-making. It seems rather late in the students’ school careers to achieve that outcome – compare the feelings of disagreement point in Perovy. In Sfard’s (1998) terms, the case is about a participatory process – attendance at a graduation – but in which students acquire ethical and intellectual virtues through hearing a prayer read out in a didactic manner. The case is a pedagogical puzzle. Other longstanding grounds for litigation in the US, for example, science and religion, would be open to the same process of analysis, in searching for underlying pedagogical principles. Judicial pedagogies in the South African courts

Judicial pedagogies will also be important in postcolonial settings, where the courts’ educational decisions are situated within wider societal shifts. One example is the South African case of MEC for Education: KwazuluNatal and Others v. Pillay, in 20079 (see Benson 2017; Govender & Bernard 2021). The case concerned a 15-year-old student, Sunali Pillay, who was at Durban Girl’s High School. Sunali was of Tamil heritage and wished to wear a traditional nose-stud. Nose studs and rings were banned in the school’s uniform policy, and so the case concerns issues of school rules and discipline, akin to Campbell and Cosans v. UK (see Chapter 4). Sunali had her nose pierced in the holidays (September 2004), so her mother (Ms Pillay) initially asked the school for permission to wear the stud with a plaster over it for a few weeks, while it was healing. The school granted permission

174 Conclusion until the end of October. However, Sunali continued to wear it beyond this period, which the school queried with her mother in January 2005. Ms Pillay explained: The insertion of the nose stud was part of a time-honoured family tradition. It entailed that a young woman’s nose was pierced and a stud inserted when she reached physical maturity as an indication that she had become eligible for marriage. The practice today is meant to honour daughters as responsible young adults. When Sunali turned sixteen, her grandmother would replace the gold stud with a diamond stud. (Paragraph 7) The school objected since this contravened their uniform code, to which the Pillays had agreed, and organised a disciplinary meeting. The Pillays counter-argued that this was discrimination on religious and/or cultural grounds, and went to the Equality Court, from which it proceeded to the High Court, as first appeal, and then to the Constitutional Court, as the highest appeal court in South Africa. The Equality Court held that although there was discrimination, it was not unfair. It characterised the purpose of the Code as being “to promote uniformity and acceptable convention amongst the learners” and accepted [the headteacher’s] evidence that undue permissiveness could result in a conflict with the Code, “thereby creating a disorderly environment”. (Paragraph 14) It also felt that the mother’s initial agreement to the temporary arrangement meant that the family could not now claim discrimination. The High Court reversed this decision because both religion and culture were protected and discrimination on either was therefore unfair, and their initial agreement was immaterial. These arguments were taken to the Constitutional Court, and other organisations joined the proceedings, including an association of school governors. The headteacher argued for: …the importance of uniforms in promoting a culture of discipline and respect for authority. According to her, children, especially teenagers, need boundaries and the school environment should be a place where the influences of modern commercial life are moderated to create a better learning environment. The pressures of modern fashion are particularly intense as girls try to imitate and out-do each other. Uniforms help to limit the impact of that competition on the learning experience. (Paragraph 99)

Conclusion  175 The Court broadly accepted this principle and went on to echo her implicit participatory metaphor in the main judgment: Rules are important to education. Not only do they promote an important sense of discipline in children, they prepare them for the real world which contains even more rules than the schoolyard. Schools belong to the communities they serve and that ownership implies a responsibility not only to make rules that fit the community, but also to abide by those rules. (Paragraph 100) This echoes Scribner and Warnick’s (2021) claim that “the expressive function in schools is to provide a framework for moral education and the civic, liberal, and even vocational purposes associated with it” (p. 118). It is a strong participatory pedagogy because it extends beyond the school itself to involve parents as role models of rule-following. Despite this, the Constitutional Court held that “[t]he admirable purposes that uniforms serve do not seem to be undermined by granting religious and cultural exemptions” (Paragraph 101). This was because respect for diversity was also part of the learning: Teaching the constitutional values of equality and diversity forms an important part of education. This approach not only teaches and promotes the rights and values enshrined in the Constitution, it also treats the learners as sensitive and autonomous people who can understand the impact the ban has on Sunali. (Paragraph 104) Here the Court suggests that the learners are conceived of as knowers and thinkers, in Bruner’s (1996) third and fourth models, empathising with their peer’s experiences even though it is not their own. The Court went on to make specific recommendations to the school on redrafting its Uniform Code. These were strongest in Judge O’Regan’s partly dissenting opinion, who contrasted the current role of education with a colonial view: Education is the engine of equal opportunity. Education in South Africa under apartheid was both separate and deeply unequal. Notoriously, HF Verwoerd proclaimed in 1953 that – “Native education should be controlled in such a way that it should be in accord with the policy of the state … If the native in South Africa today in any kind of school in existence is being taught to expect that he will live his adult life under a policy of equal rights, he is making a big mistake … There is no place for him in the European

176 Conclusion community above the level of certain forms of labour….” And the apartheid state implemented this vision. (Paragraph 121, original ellipses) For O’Regan, apartheid adopted a very specific philosophy of education, though one that was increasingly resisted: “It is not surprising then that education was the trigger for the Soweto revolt by Black school children” (Paragraph 121). She then detailed the slow progress towards greater integration in schooling. For her, a School’s Code of Conduct was not simply a set of rules but a pedagogical device for rights education: …the school should provide a place in its curriculum for the Code of Conduct to be discussed with all learners in the classroom. That discussion should include a discussion of the principles on which exemptions from the rules are granted and the process whereby that happens. (Paragraph 184) This process of active discussion, rule-creation and observance was itself pedagogical: In this way, schools will model for learners the way in which disputes in our broader society should be resolved, and they will play an important role in realising the vision of the Preamble of our Constitution: a country that is united in its diversity in which all citizens are recognised as being worthy of equal respect. (Paragraph 185) This is not simply a participatory metaphor, it is a situation where the notion of democratic participation has an explicit postcolonial dimension, and therefore where the pedagogical models and metaphors are luminous with social and political significance. The discussion of the different judicatures of the US and South Africa has shown how judicial pedagogies are at work elsewhere, beyond Europe. In the heavily litigated context of the US, long-standing constitutional claims have generated a wealth of court decisions that are worthy of further scrutiny for their pedagogical assumptions around religion and education. In post-apartheid South Africa, the role of education as a powerful force for greater equality means that some of the accepted mechanisms for ensuring equal opportunity, such as uniform rules, are themselves open to question according to different theories of justice and inclusion, and in this situation, judicial pedagogies are manifested. Both these contexts would warrant further investigation.

Conclusion  177 Judicial pedagogies and judicial education The final area for further consideration is the place of judicial pedagogies within judicial education. As explained in Chapter 3, judicial education here means the training that judges receive (Armytage 2015; Piana et al. 2013). Better judicial education could ensure that judges’ decisions are more educationally competent so that they can ultimately be grounded and workable, besides being impartial and fair. Dinham (2021) argued that the “professions are trained and equipped for encounter with religion and belief diversity” (p. 158). Though he did not specifically discuss lawyers or judges, he described court judgments as “legal expressions of the public muddle” (p. 35) in commenting on a range of cases, notably on employment law but also on education. Making detailed recommendations for judicial education is complex because, as noted, judges’ career paths are structured differently across jurisdictions, from an early career choice in civil law systems to a recognition of seniority for lawyers in common law systems. Nevertheless, a list of desiderata could be drawn up from the analysis chapters: an awareness of different philosophies of education – from knowledge acquisition to socialisation to employability; an awareness of curriculum, teaching, learning and assessment as separate but inter-related domains within education; recognition of the tension between individual and social perspectives, as expressed also in acquisition and participation metaphors. Then, one could consider how these inter-relate with religious education and the place of religions within education more widely. As noted in Chapter 2, Temperman (2012) had set out a set of questions on symbols, such as “who is actually supposed ‘to be neutral’ according to human rights law— States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol ‘interfere’ with the rights and freedoms of others or public order?” (p. 145). These questions will be better answered for such teachers, students and/or pupils if these pedagogical issues are addressed in a more nuanced manner. Indeed, an obvious requirement would be to distinguish between religious education, instruction and studies – which the ECtHR failed to do in Papageorgiou et al. v. Greece10 as late as 2019, even after the previous litigation had shifted through these different terms. Final remarks This chapter has considered the implications of the concept of judicial pedagogies both in Europe and in other jurisdictions internationally. The concept is not limited to the decisions of one supranational European court but has wider ramifications. It also has implications for professional religion and belief literacy, not least since judges are able to resolve, at least partially, the legal

178 Conclusion and policy muddles around these issues. Judicial pedagogies deserve more attention because they can help identify the specifically educational dimensions of the wider question of the place of religions and beliefs in society. Finally, the cases are also personal and biographical. Indeed, many of the student protagonists may now be parents themselves. At the time of writing, David Dojan and Elly Frölich, whose schooling opened Chapter 1, will be turning 30 and 28 years old, respectively. We do not know what their attitudes to their own education are now, nor what their attitudes towards their children’s education would be – nor for pupils more generally. We can guess that their own schooling and home life were made harder by the juxtaposition of conflicting perceptions of individual rights and societal obligations, on the part of their parents and their teachers. These matters would not have reached the courts if these people had been less recalcitrant and decided not to make a fuss. These however were clearly matters that mattered. Gordon Campbell’s younger brother, Andrew (now a human rights lawyer), looked back on his mother’s decision to take on the local primary school, in what would eventually become the Court’s Decision in Campbell and Cosans: I feel limitless pride for what she did for me and my brother. That the case also resulted in no other kids being hit at school was the cherry on the cake. I mean, we all know mums are amazing but how many do that for their kids? (Macleod 2022) But this took its toll; she suffered a stroke in the year of the ECtHR’s judgment, and died seven years later, aged only 47. Jeffrey Cosans had been prevented from sitting for his examinations so left school without any qualifications, and his dismissal was recorded in the official records: the consequences of not being beaten remained with him for decades. As noted in the Introduction (Chapter 1), these issues are not just rights: they also seem like obligations to the students and their parents – a morally uncomfortable but demanding experience out of which they must act. Courts’ judgments are not simply an abstract legal commentary, but a decision about those parents, those students, those teachers, that school. The more that courts refine their pedagogies, the sounder and securer – and more coherent and competent – their judgments will be. Notes 1 Dogru v. France 27058/05. 2008. https://hudoc.echr.coe.int/eng?i=00190039. 2 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23. https://hudoc.echr.coe.int/eng?i=001-57509.

Conclusion  179 3 Mansur Yalçın and others v. Türkiye, no. 21163/11, 16 September 2014. https://hudoc.echr.coe.int/eng?i=001-81356. 4 Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011. https://hudoc. echr.coe.int/eng?i=001-104040. 5 Mehmet Reşit Arslan and Orhan Bingöl v. Türkiye, nos. 47121/06 and 2 others, 18 June 2019. https://hudoc.echr.coe.int/eng?i=001-194194. 6 Campbell and Cosans v. The United Kingdom, 25 February 1982, Series A no. 48. https://hudoc.echr.coe.int/eng?i=001-57455. 7 Lemon v. Kurtzman, 403 U.S. 602 (1971). 8 Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992), reh’g denied, 983 F.2d 234 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993). 9 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008. 10 Papageorgiou and others v. Greece, nos. 4762/18, 6140/18, ECtHR (First ­section), 31. https://hudoc.echr.coe.int/eng?i=001-197254.

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180 Conclusion Piana, D., P. Langbroek, T. Berkmanas, O. Hammerslev, & O. Pacurari (eds.). (2013). Legal education and judicial training in Europe: The menu for justice project report. Eleven International Publishing. Ringelheim, J. (2017). State religious neutrality as a common European standard? ­Reappraising the European Court of Human Rights approach. Oxford Journal of Law and Religion, 6(1), 24–47. https://doi.org.ezproxy-prd.bodleian.ox.ac.uk/10. 1093/ojlr/rww060 Russell, B. (1977). Education and the social order. Unwin. [First published 1932]. Russo, C. (2012). Introduction. In C. Russo (ed.), Religion in schools. Sage. Scribner, C. & B. Warnick. (2021). Spare the rod. University of Chicago Press. Sfard, A. (1998). On two metaphors for learning and the dangers of choosing Just one. Educational Researcher, 27(2), 4–13. DOI: 10.2307/1176193 Superfine, B. M. (2009). The evolving role of the courts in educational policy: The tension between judicial, scientific, and democratic decision making in Kitzmiller v. Dover. American Educational Research Journal, 46(4), 898–923. https://doi. org.ezproxy-prd.bodleian.ox.ac.uk/10.3102/0002831209345398 Temperman, J. (ed.). (2012). The Lautsi case: Multidisciplinary reflections on religious symbols in the public school classroom. Brill.

Index

Pages followed by “n” refer to notes. Acquisition, metaphor of 10–12, 47, 59, 61, 63, 66, 69, 72, 89, 93–94, 126, 130, 148, 155–156, 177; see also Learning; Participation; Sfard, A. Albania 145 Alberts, W. 68, 73, 80, 94 Alevi, Alevism 11, 44, 82, 85–94, 141–142, 154–156, 164 Allen, R. 140, 150 Allieu-Mary, N. 78, 95 Althof, W. 64, 73 Amsterdam, A. G. 48, 52, 55 Anagnostou, D. 162, 166 Andreescu, L. 30, 40, 162, 168 Annicchino, P. 30, 37 Arena, D. 61, 73 Armytage, L. 49, 55, 177, 179 Arold, N. 116, 34, 51, 55 Arslan and Bingöl v. Türkiye 171, 179n3 Arthur J. 22–24, 34, 164, 166 Assessment xi, 10–12, 16, 19, 27, 48–49, 52–53, 80, 88, 98, 114, 130, 135–152, 156, 159, 161, 169, 177; see also Average Marks; Evaluation; Examinations; Test Atheism, atheist 5, 8, 12, 25, 45, 76, 79–81, 108, 125, 144, 158, 164 Aubry, S. 19, 34 Auld, E. 19, 34 Austria 4–5, 69, 83 Average marks 12, 146–149, 158 Baetens, F. 50, 55 Bail, S. 32, 40 Baird, J.-A. 49, 55, 136, 150

Baka, A. (Judge) 86, 104 Balladore-Pallieri, G. (Judge) 69 Banach, M. 22, 34 Banjac, M. 20, 34 Barnes, L. P. 79, 95, 131 Bauer, N. 16, 40 Bayrakli, E. 162, 166 Belgium, Belgian 32, 66, 73, 83, 106, 126, 141, 144 Benhabib, S. 29, 34, 170, 179 Benson, I.T. 173, 179 Berkmann, B. 77, 95, 148, 150 Berkowitz, M. W. 65, 73 Bernitz, H. 18, 34 Bernstein, B. 48, 55, 135, 150 Berro-Lefèvre, I. (Judge) 106 Besco, L. 49, 55 Bhuta, N. 29, 34, 170, 179 Bianku, L. (Judge) 145 Bible, The, biblical xi, 3, 83–84, 139 Biesta, G. 101, 110 Biggs, J. 137, 150 Bishop 21, 62, 106–107, 140 Björgvinsson, D. T. (Judge) 145–147 Blessing (classroom) 11, 27, 53, 119, 125–126, 155 Bonello, G. (Judge) 8, 44, 104, 120, 125–126, 145, 157 Bojovic, Z. 48, 56 Borghi, B. 87, 95 Bosnia and Herzegovina 18, 106, 145 Bowie, R. 139, 150 Bradbury, A. 137, 150 Bråten, O. 21, 34, 75, 87, 95 Bratza, N. (Judge) 120, 145 Broberg. M. 102, 110

182 Index Brooks, C. 48, 55 Brown, G. 115, 131 Brown, M. 65, 74 Brown v. Board of Education of Topeka 52, 54n4 Bruinsma, F. J. 50, 55 Bruner, J. 10, 13, 46–48, 52, 54–55, 57, 58, 73, 93, 95, 98, 110–111, 122–123, 130–131, 148, 150, 153–154, 157, 165–166, 169, 175, 179 Brzozowski, W. 77, 95 Buddhism, Buddhist 80–81, 85, 87, 103 Burkini 129, 158 Callan, E. 61, 73 Campbell and Cosans v. the United Kingdom 10, 13n2, 27, 34n18, 54n5, 58, 62–72, 73n1, 98, 104, 110n1, 153–154, 157, 165n1, 171, 173, 178–179 Carlson, S. 20, 35 Casadevall, J. (Judge) 120 Catechesis 101, 111 Catholic, Catholicism 4, 21–22, 38, 53, 85, 99–100, 106–109, 116, 118, 126, 139–144, 155–156, 158; see also Bishop; Vatican Cayanus, J. 100, 110 Celibacy, celibate 106, 156 Cemevi 86, 92 Chan, J. 79, 95 Character, character education/ development 60, 64–65, 172–173 Christian, Christianity 2, 6–7, 17, 19, 22, 71, 76, 78–88, 91, 93, 102–103, 114, 119, 121–122, 125, 141, 156, 170; see also Catholic; Latter-Day Saints; Lutheran; Orthodox; Vatican Cichosz, W. 140, 150 Citizen, Citizenship Education 15–17, 20, 22–23, 59, 78, 107, 176 C.J., J.J. and E.J. v. Poland 146, 149n6 Clarke, M. 138, 151 Classroom blessing 11, 27, 53, 125–127, 155–156 Classroom Talk 103, 114, 117–118; see also Dialogue; Teacher/Teaching; Teacher Talk Clough, N. 103, 111

Coles, R. 139, 150 Coll, R. 100, 111 Commission of the Bishops’ Conferences of the European Union (COMECE) 21, 35 Communism, Communist 28, 61, 144, 162 Competence 9–10, 43–44, 45, 48–49, 54, 153, 164–165 Congregation for the Clergy 101, 111 Convictions (religion or belief) 3, 6–7, 10, 26, 53–54, 58, 61–62, 66–69, 71–72, 75–75, 79, 83, 87, 90–91, 93–94, 100, 108, 117, 121–122, 124, 128, 144, 154–156 Copley, T. 61, 68, 73 Corporal punishment 10, 27, 53, 62–68, 98, 126, 153 Costa, J-P. (Judge) 83, 86, 120, 144, 157 Coulby, D. 20, 22, 35 Council of Europe xi, 9, 16–24, 30–31, 34–35, 43, 48, 50, 55, 135, 150, 160–161, 163–164, 166 Council of the European Union 17–18, 35 Cremona, J. (Judge) 63 Croatia 83, 120, 140, 147 Crucifix 8, 11, 45, 53, 119–122, 125, 155–157, 162, 164 Culture x, 16, 84, 117, 129, 174; Culture of religions 18; In the curriculum 19, 48, 63, 86–87, 89–90, 92–93, 98; Legal culture 16, 51; Religious culture and ethics 86–93; Students’ cultures 117, 129 Cumper, P. 30, 35, 44, 55, 75, 77, 95 Curriculum 1–3, 5–6, 18, 27, 30, 44, 52, 60, 118, 123, 143, 148–149, 154–156, 160, 163, 165, 169–170, 176–177; see also Ethics – Education; Religious Education; Sex education; Cases 75–97; Distinguished from pedagogy and assessment 10–11, 48–50, 98–99, 136–137, 140; General planning 2, 69–70, 127–128, 143; Teacher and curriculum 11, 101–103, 109, 114 Cyprus 69, 100, 106, 120, 126–127, 139, 144, 158

Index  183 Czelny, M. 108, 111 Czech 5, 144 Dahlab v Switzerland 11, 13n7, 27, 30, 33n12, 45, 54n3, 103–106, 108–110, 120, 124–125, 129–130, 131n7, 155, 159, 161, 165n7 Dale, R. 20, 35, 161 Danish see Denmark Davison, K. 82, 96 Davis, D. 28, 35 Dawson, B. 49, 55 de Blots, M 51, 55 Dedov, D. (Judge) 106–107, 126 Denmark, Danish 10, 27, 53, 58, 68–73, 75, 83, 91, 120, 153 Denomination 80–81, 84–85, 90–91, 122, 124 Dewey, J. 59–60, 63, 66, 73 de Witte, B. 20, 35 Dialogue 18, 21; Classroom 11, 100, 103, 117–119, 122–124, 156–157; Intercultural, Interreligious 22, 83–84 Diem, S. 52, 55 Dinham, A. 7, 14, 50, 55, 177, 179 Diocese 106–107 Directorate-General for Internal Policies of the Union 18, 36 Dixon, H. 49, 55 Dogru v France 27, 33n11, 169, 178n1 Domitrovich, S. 49, 55 Dorsi, D. 19, 34 Driessen, G. 140, 149 Drumm, L. 48, 56 Dunne, M. 137, 151 Dupin v France 117, 130n5, 138, 149n1, 160, 166n16 Durham, C. 18, 35 Dyslexia 49, 138, 152 Dzehtsiarou, K. 16, 36 Eigmüller, M. 20, 35 Eke, R. 103, 111 Elwood, J. 136, 150 Empathic, empathise, empathy 30, 44, 55, 175 Employment: Law 18, 27–28, 105–106, 155, 159, 162, 172; Outcome of assessment 136, 138, 144

England, English xi, 7, 9, 28, 30, 49, 75, 80, 87, 99, 102, 116, 118–119, 137, 139–140, 142, 158, 163; see also United Kingdom Enkvist, V. 18, 34 Ethics: Assessment of ethics/ethics of assessment 135–136; Ethics education 2, 60–61, 64, 66, 78, 81, 84–86, 90, 92, 106–107, 116, 136, 140, 175; see also Moral education; Professional ethics 49–50 European Commission (EC), as arm of EU 146; Directorate-General for Education, Youth, Sport and Culture 18, 36; European Commission v Hungary 17, 33n3 European Commission on Human Rights 16, 146 European Court of Human Rights xi, 166, 24–26; see also Grand Chamber; Compared with other European institutions 15–19, 21, 23–24; Individual cases 5, 8–13, 21–23, 27, 58, 63–65, 68, 72, 75–77, 85–86, 87, 93, 98, 103–109, 117, 119–130, 141–149, 178; Jurisdiction 28–32, 43–50; see also Competence European Parliament 17, 37 European education 23–24, 32; Area 18, 16; Space 19, 60, 161 Europeanisation: of education xii, 1, 9, 12, 19–24, 33, 54, 160–162; of religions and beliefs in education xii, 9, 12, 51, 54, 149, 160–165 Evaluation 12, 135–136, 140–148, 149; see also Assessment; Examinations Evans, C. 24, 36 Evans, M. 26, 36 Evans, V. (Judge) 63, 67–68 Everington, J. 21, 34, 99–100, 111 Evrigenis, D. (Judge) 69 Examinations 11, 49, 88, 99, 136–143, 147, 178; see also Assessment; Evaluation Fabricius, S. 100–101, 111 Faith 78–79, 101, 139; see also Multifaith; nurture in 30; as term for religions/denominations x, 83,

184 Index 85–92, 125; schools 75, 99, 116, 140–141; of teachers 101, 104, 108 Fastnacht 4–5, 47, 114, 157 Fernández Martínez v. Spain 11, 13n8, 28, 34n20, 53–54, 103, 106–110, 126, 130, 155, 157, 161, 165n8 Ferrari, S. 18, 35 Ferrarotti, F. 20, 36 Filipović, A. 139, 150 Fincham, D. 100, 111 Finland, Finnish 120, 127 Fischbach, M. (Judge) 104 Fisher, R. 138, 152 Five Pillars (of Islam) 88, 143 Flensner. K. 103, 111, 118, 131 Fokas, E. 30, 32, 36, 162, 166 Folgerø and Others v. Norway 10, 13n4, 27, 34n13, 53–54, 61, 73n3, 82–85, 87–88, 91–94, 117, 120, 128, 130n6, 155, 157–158, 165n4 Folk psychology 46 France, French 20, 27–28, 49, 63, 75, 78, 83, 86, 106, 116–117, 120, 138, 144, 157–158, 160, 169 Francis, L. 115–116, 132 Franck, O. 136, 139, 150 Freathy, R. 78, 95 Freckelton, I. 49, 57 Freire, P. 48, 56 Fuchs, M. E. 79, 95 Fulga, T. 18, 36 Fura/Fura-Sandström, E. (Judge) 5, 86 Føllesdal, A. 16, 36 Galanter, M. 45, 56, 162, 167 García Oliva, J. 99, 112 Garlicki, L. (Judge) 145 Gas-Aixendri, M. 99, 103, 112 Gates, B. 100, 112 Gaudin, P. 78, 95 Gearon, L. 22–24, 34, 37, 41, 78, 95 Germany, German 1–6, 16, 20, 49, 69, 75, 78, 80, 100, 114, 127, 154 Georgia, Georgian 86, 144 Giorgi, A. 30, 37 Ginn, G. 99, 112 Glas, L. R. 16–17, 37 God 79, 115, 139 Godfrey, R. 140, 150 Gottlieb, S. E. 32, 41 Grace, G. 100, 112

Grand Chamber (of ECtHR) 82, 107, 120–121, 124, 155 Gray, E. 105, 112 Greece, Greek 25, 30, 68–69, 75–76, 78, 83, 104, 120, 177 Grek, S. 19–20, 23, 33, 37–38, 161, 167 Greve, H. S. (Judge) 144 Grimminger-Seidensticker, E. 129, 132 Grimmitt, M. 79, 95 Grimonprez, K. 37, 160, 167 Griţco, V. (Judge) 106 Grzelak v. Poland 12–13, 27, 34n14, 53–54, 76, 94n7, 143–149, 156–159, 166n14 Guilfoyle, L. 79, 95 Guise, J. 138, 152 Hafez, F. 161, 166 Hagesæther G. 83, 96 Hammer, A. 101, 112 Han, H. 65, 74 Hand, M. 60–61, 74 Hare, W. 62, 73 Haredi 32, 43 Hargreaves, L. 139–140, 147, 151 Harutyunyan, A. 17, 37 Hazewinkel, H. J. 22, 37 He, Q. 139, 151 Heinz, M. 82, 96 Heise, M. 32, 37, 45, 56, 156, 167 Hendek A. 9, 14, 24, 30, 37, 44, 56, 85, 96, 102, 112, 163, 167 Heriard, P. 18, 36 Hermeneutics 78, 84, 93, 118, 126, 139, 155 Hijab 11, 27–28, 45, 53, 103–105, 109, 123–124, 129, 155–156, 164, 166 Hindu, Hinduism 79–81, 85, 87, 119 Hirvelä, P. (Judge) 120 History: Of education 8, 75; Of human rights 21, 24, 26; Religious 78, 84, 86; School subject 59, 61, 71, 78, 84, 88 Holt, J. 80, 96 Holton, A. 139, 151 Hulme, C. 138, 152 Humanism, humanist 81–85, 163–164 Hungary, Hungarian 17, 28, 33, 86, 91, 104, 106

Index  185 Hunter-Henin, M. 18, 29, 35, 37, 159, 167, 171, 179 Huntingdon, S. 19, 37 Hüsrevsahi, S. 18, 42 Iceland 63, 91, 145 Ipgrave, J. 118–119, 131, 132 Ireland, Irish 82, 106, 121, 127, 139–140, 157 Ilic, M. 48, 56 Indoctrination 10, 29, 53–54, 58, 61–62, 65, 68–72, 88, 153–154 Intellectual development 63–64, 98, 104 Iron Curtain 19, 22 Islam, Islamic 17, 19, 80–81, 85–94, 103–104, 122, 124, 129, 141, 161; see also Alevi; Muslim; Sunni; Islamist 17; Islamophobia 161 Israel, Israeli 32, 43 Italy, Italian 8, 11, 27, 30, 44–45, 69, 83, 87, 91, 106, 114, 119–125, 155, 162 Jackson, R. 16, 18–19, 78, 85, 87, 96, 102, 112, 142, 151, 160–161, 167 Jäderblom, H. (Judge) 107, 127 Jankovskis v. Lithuania 160, 166n15 Jaremba, U. 49, 56 Jebens S. E. (Judge) 83, 120 Jew, Jewish, Judaism 80–81, 85, 87–88, 91, 93, 141 Jiménez Lobeira, P. 29, 38 Jokić, B. 139–140, 147, 152 Jones v. Clear Creek Independent School District 12–13, 172, 179n7 Jonkers, P. 21, 38 Journell, W. 105, 112 Judicial behaviouralism 50 Judaism see Jew Judicial education 12, 49–50, 54, 169, 177 Judicial pedagogy 9, 12, 30, 44, 53–54, 83, 120, 148, 162–163, 165, 169–170; see also Pedagogy; As competence 43–45; concept 45–51; ECtHR’s judicial pedagogies 153–159; In research questions 51–52; Judicial education, contrasted with 45, 49, 177–178; Non-European examples 171–176

Jukier, R. 49, 56 Jungwiert, K, (Judge) 5, 144 Jurisprudence 29, 163, 169 Kalaydjieva, Z. (Judge) 120 Kallitsoglou, A. 138, 151 Karakaş, I. (Judge) 91, 106–107 Kay W. 80–81, 96–97, 115, 133 Kaymakcan R. 85, 96, 102, 113, 163, 167 Keane, E. 82, 96 Keast, J. 16, 39, 169–170, 167 Keller, H. (Judge) 126–127 Kirkham, R. 52, 56 Kitto, E. 48, 55 Kjeldsen, Busk Madsen and Pedersen v. Denmark 10, 13n3, 27, 34n17, 53–54, 58, 62, 65, 68–73, 76–77, 94n2, 153–154, 157, 160, 178n2; Kjeldsen principles 77, 79, 82, 87, 90, 92–94, 141–142, 160, 170 Klöhn, L. 51, 57 Koenig, M. 23, 38, 164, 167 Kohlberg, L. 64, 73, 116, 132 Kovler, A. (Judge) 120 Koran 89, 92, 103–104, 127, 141; see also Qur’an Köse et al. v. Turkiye 124–125, 131n8 Kristendomskunnskap med Religions-og Livsynsorientering, known as KRL 82 S. Krishnaswamy 32, 40 Kuo, N.-C. 52, 56 Kushnir, I. 20, 38 Kvale, S. 138, 151 Lambert, E. 16, 38 Lambrecht, S. 16, 40 Lamprianou, I. 139–140, 151 Latter Day Saints 125 Latvia 83 Lautsi and Others v. Italy 8, 11, 13n9, 27, 29–30, 34n15, 44–45, 53–54, 114, 119–130, 155, 157, 159, 161–162, 164–165, 170 Lawn, M. 20, 23, 33, 38, 161, 167 Learning 7, 9–11, 16, 43–47, 52, 54, 60–62, 65, 114–115, 121, 123, 125, 169–170, 174–177; see also Indoctrination; Teachingabout religions 81, 84; contrasted with

186 Index teaching and assessment 48–50, 98, 103, 135–137, 142, 148–149, 163; devotional activities and learning 78, 118; experiential learning 118–119; Individual and group 116–117, 124, 127–130; learning needs 49, 138; learning spaces 50, 174–175; metaphors for 11, 153–158, 165; see also acquisition; participation J. Lee 103, 111 Legg, A. 28, 39 Leigh, I. 75, 96, 154, 167 Lemmens, K. 16, 40 Lemmens, P. (Judge) 106–107, 126 Lemon v. Kurtzman 172–173, 179n6 Lenz, C. 101, 112 Lewin, D. 61, 72–73 Lewis, T. 30, 35, 44, 55 Liagkis, M. 78, 96 Liechtenstein 5, 100 Lied, S. 82, 98, 102, 113 Liesch, L, (Judge) 63 Lithuania 91, 160 Lim, C. S. 51, 56 Loiseau, D. 16, 40 López Guerra, L. (Judge) 127 Lorenzen, P. (Judge) 83, 120 Louciadies, L. (Judge) 144 Loyalty, to church 106–110 Lubarda, B. (Judge) 127 Lucenti, M. 87, 95 Lueg, K. 20, 35 Lundie, D. 158, 167 Lundy, L. 27, 39, 135, 150 Lutheran, Lutheranism 82–85 Luxembourg 5, 83, 104, 106, 157 MacDonald, R. (Judge) 63 Macedonia see North Macedonia MacLeod, J. 178–179 Mahabharata 85 Makarczyk, J. (Judge) 144 Mąkosa, P. 28, 39, 99, 101, 112, 143, 151 Malinverni, G. (Judge) 120 Malta, Maltese 63, 104, 118, 120, 126, 145, 157 Manso, J. 20, 39 Margin of appreciation 28, 124, 171 Markoviti, M. 30, 39 Marples, R. 60, 73

Marshall, K. 62, 74 Martin, J. R. 60, 74 Martin, M. 100, 110 Martínez-Torrón, J. 103 Matarranz, M. 20, 39 Maruste, E. (Judge) 120 Mathematics 5, 18, 59, 99, 141 Matwijkiw, A. 103, 112, 128, 133 Mayoral, J. 49, 56 McCann, M. 45, 56 McCowan, T. 19, 39 McCrea, R. 18, 39 McGoldrick, D. 103, 112 McGrath, R. 65, 74 MEC for Education: Kwazulu-Natal and Others v Pillay 12–13, 173–176 P. Meindl 65, 74 Mental Development 11, 115–116, 124–125, 127, 130 Merry, M. 140, 149 Michéa, J.-C. 163, 167 Miles, M. 52, 57 Mijović, L. (Judge) 146 Minorities (religious, ethnic) 7, 28, 30, 32, 94, 116, 170 Miroshnikova, E. 28, 35 Mobilisation 12, 32, 82, 162 Moldova 106, 120, 145 Monaco 106 Moral education see Education - Ethics Morris, A. 140, 150 Morris, P. 19, 34 Morsink, J. 25, 39 Morton, J. 65, 74 Moulin, D. 102, 112 Möhwald, A. 129, 132 Movement for Optional Celibacy of Priests (MOCEOP) 106–109 Movsesian, M. 29, 39 Muijs, D. 137, 15 Mulder, A. 99–100, 112 Multifaith 79, 163 Mundy, K. 18, 39 Muslim 5, 11, 53, 79, 87–92, 103, 108, 110, 118, 129, 140–141, 161; see also Alevi; Islam; Sunni Nation, K. 138, 152 Nelson, J. 100, 113 Nesbitt, E. 79–80, 96

Index  187 Neutral, neutralisation, neutrality 6, 11, 18, 22, 29–30, 76, 103, 122, 124, 129, 147, 159, 164, 170–171, 177 Newton, P. 136, 151 Nicolaou, G. (Judge) 106, 120 Nicolas, S. 137, 152 Nisbet, I. 136, 151 Nixon, G. 79, 97 Normand, R. 20, 39, 161, 167 Northern Ireland 116 North Macedonia, Macedonia 83, 104 Norway, Norwegian 10, 13, 17, 27–28, 34, 53, 55, 61, 63, 69, 73, 82–85, 117–118, 128, 130, 144, 154–155, 158, 165 Novoa, A. 20, 39 Nowak, T. 49, 56 Nußberger, A. (Judge) 5, 16, 39, 106 Objective (of knowledge), objective, objectivity 29–30, 47, 69–70, 76–77, 79–80, 82, 87–91, 93–94, 117, 142, 154–155 Office for Democratic Institutions and Human Rights (ODIHR) 18, 40, 91, 96, 161, 167, 170, 179 O’Grady, K. 21, 38, 119, 134, 161, 167 O’Loughlin, E. 52, 56 Olson, D. R. 46, 57 Öner, S. 17, 19, 39 Opposs, D. 139, 151 Opt out see Withdrawal Organisation for Economic Cooperation and Development (OECD) 19, 24, 136, 140, 151, 160 Organisation for Security and Cooperation in Europe (OSCE) 18–19, 22–24, 40, 91, 97, 160–161, 167, 170, 179 Oriolo, A. 103, 112, 128, 133 Orthodox (Church) 76, 78, 85, 119, 125–126, 162 Osbeck, C. 102, 113 O’Siochru, C. 158, 167 Osmanoğlu and Kocabaş v. Switzerland 11, 13n11, 27, 34n19, 53–54, 114, 119, 127–131, 155–156, 158, 161, 166n11 Ozga, J. 20, 40

Özgül, C. 30, 40 Paine, T. 24, 40 Panadero, E. 137, 151 Papageorgiou and others v. Greece 69, 76, 78, 94n6, 177, 179n9 Parental rights or freedoms 2, 26–27, 91, 123 Participation, metaphor of 10–12, 47, 59, 63, 89, 94, 99, 121, 126, 130, 154–156, 177; see also Acquisition; Learning; Sfard Pastor Vilanova, P. (Judge) 127 Pearce, J. 79, 97 Pedersen, H. (Judge) 69 Pedagogy 48–49, 60–61, 98, 114, 136, 140, 159, 171, 175 see Assessment, Curriculum, Judicial Pedagogy, Learning, Teaching; Folk pedagogy 46–48, 54, 58, 153 Perelstain, O. 32, 40 Peroni, L. 28, 40 Perovy v Russia 11, 13n10, 27, 34n16, 53–54, 114, 119, 121, 125–127, 130n3, 155–156, 166n12, 173 Perry, S. 138, 151 Perry-Hazan, L. 32, 40, 43–45, 57, 153, 168 Peters, B. 16, 36 Peters, R. 59–60, 62–63, 65, 67, 74, 78, 96 Peterson, A. 16, 40, 135, 152, 160, 168 Petrén, S. (Judge) 69 Pettiti, L-E. (Judge) 63 Philosophy, philosophies 64; as personal convictions 8, 10, 26, 61, 66–67, 71, 75–77, 79, 82–85, 87, 90, 98, 100, 117, 120, 122, 128, 144; disciplinary approach to religious education 78–79, 81–82, 85, 90; philosophy of education 8, 10, 52, 58–62, 72, 153, 169, 176–177; political philosophy 12, 29, 169–170 Physical education 27, 70, 129, 158, 170 Piaget, J. 64, 74, 115, 134 Piana, D. 49, 57, 177, 179 Pluralism, pluralistic 10, 25, 29–30, 53, 70, 76–77, 79–80, 82, 87, 89–90,

188 Index 93–94, 100–102, 117–118, 122–123, 126, 128, 137, 142–143, 154–155, 157–158, 162, 171 Poalelungi, M. (Judge) 120 Poláčková, A. (Judge) 126–127 Poland, Polish 12–13, 27–28, 34, 53–54, 76, 94, 99, 108, 140–141, 143–149, 156, 158, 161, 166 Popa, M. 30, 40, 162, 168 Popelier, P. 16, 40 Porić, E. 87, 96 Portugal, Portuguese 28, 86, 126, 128 Potocki, A. (Judge) 106 Poulter, S. 29, 40 Power/Power-Forde, A. (Judge) 106, 120, 122–124, 156–157, 170 Priest 106, 125 Priestley, M. 101, 110 Primary school, schooling 1–7, 11, 15, 29, 62, 93, 103, 124, 127, 139, 145, 147 Prutsch, M. 18, 36 Pugh, G. 141, 152 Puppinck, G. 16, 40 Pušnik, T. 20, 34 Qualifications 12, 17, 36, 138–140, 144, 147–148 Qur’an, The 89, 142; see also Koran Raimondi, G. (Judge) 91, 106, 120 Rainey, B. 52, 57 Ramayana, The 85 Raynaud, P. 75, 96 Religious education x–xi, 1, 4, 27, 68, 83, 170 see Assessment, Curriculum, Dialogue, Europeanisation of religions and beliefs in education, Learning, Teacher, Withdrawal; Aims 19, 22–23, 61, 77, 108, 117; Confessional 11, 18, 78–80, 85, 89, 99–101, 107, 116, 118, 155, 164; see also Pluralism, Pluralistic; Contrasted with religious instruction and religious studies 30, 44, 75–76, 177; In the school curriculum 1, 16, 19, 75; Research on 21, 118, 164–165; Systematic and thematic approaches 80–81; Teachers of 98–103 Report (school) 53, 141, 143–145, 148–149, 156, 158–159, 163

R (Fox et al.) v Secretary of State for Education 163–164 Richardson, P. 100, 113 Reid, G. 138, 152 Right to education (A2P1) 24–27, 58, 171 Right to freedom of religion and belief (A9) 2, 5, 24–27, 60, 73–74, 91, 107, 170 Right to private life (A8) 9, 103, 106, 109 Ringelheim, J. 159, 168, 171, 180 Ritual 86, 89, 92–93, 114, 118–119, 163, 172 Robinson, S. 101, 110 Romero, M. 137, 151 Romania, Romanian 30, 83, 162 Rozakis, C. (Judge) 83, 120, 122, 170 Rosenberg, G. 31–32, 40, 45 Runkle, D. 49, 57 Russell, B. 59, 74, 171, 180 Russia, Russian 11, 13, 27, 34, 53–54, 83, 107, 114, 119–120, 125–127, 130, 155–156, 165 Russo, C. 31, 40, 172–173, 180 Rymarz, R. 102, 113 Ryssdahl, R. (Judge) 63, 69, 157 Sai, Y. 140, 152 Saiz Arnaiz, A. (Judge) 106–161 Sajó, A. (Judge) 91, 106–107 Sandsmark. S. 83, 96 Salmon, M. 16, 40, 160, 168 Saniewski v. Poland 12–13, 53–54, 141, 143–145, 149, 157–158, 159, 166n13 Santoro, S. 18, 35 S.A.S v France 128, 131n10 School Curriculum and Assessment Authority (UK) 80, 97 Schihalejev, O. 102, 113 Scholes, S. 140, 152 Schreiner, P. 21, 23–24, 40–41, 51, 57, 160–161, 162–165, 168 Schultz, D. 32, 41 Schultz, U. 49–50, 55, 57 Schweitzer, F. 21, 41, 115, 132, 164, 168 Scotland, Scottish 65, 67, 100 Scribner, C. 66, 68, 74, 175, 180 Sears, A. 22–23, 34

Index  189 Secondary school, schooling 18, 29, 81–83, 90, 93, 115–116, 124–127, 143, 145–147, 172 Secular, secularism, secularity 18, 22–23, 28–29, 61, 68, 82, 85–88, 104, 121, 164, 170, 172; secularisation 30, 35 Selection (as purpose of assessment) 136, 138–140, 144, 148 Serbia, Serbian 127, 158 Serghides, G. (Judge) 126–127 Sex education (also sex and relationships education) 1–3, 5–7, 10–11, 27, 31, 47, 53, 58, 61–62, 68–71, 75–77, 114–115, 153–154, 156, 160, 163, 170 Sfard, A. 10, 14, 47, 54, 57, 59, 63, 74, 93, 97, 99, 110, 113, 125, 128, 130, 134, 148, 152–153, 155–157, 165, 167, 169, 173, 180 Shaw, G. 49–50, 55, 57 Shaw, M. 79, 97 Shaw, S. 136, 151 Shi’ism 93 Šikuta, J. (Judge) 106 Silveira, B. 50, 56 Skolverket (Swedish Curriculum Authority) 78, 81, 97 Sky, T. 32, 41 Slotte, P. 82, 97 Slovakia 104, 106, 127, 158 Slovenia, Slovenian 5, 20, 83, 87 Smith, D. 79, 97 Smith, K. 100, 113 Smith, L. 80–81, 96–97 Snook, I. 61, 74 Snowling, M. 138, 152 Snyder, J. 50, 56 South Africa xii, 5, 12, 169, 171, 173–177 Soviet, Soviet bloc 5, 19, 50 Spamann, H. 50, 57 Spano, R. (Judge) 16, 28, 41, 91 Spain, Spanish 11, 13, 26, 34, 53–54, 83, 99, 103, 106–110, 127, 155, 158, 161, 165 Spielmann, D. (Judge) 83, 106–107 Spiritual, spirituality 7, 99–100, 118 Standish, P. 58, 74 Stahl, G. 48, 57 Štimac, Z. 18, 41

Strážnická, V. (Judge) 104 Sufi, Sufism 86, 93 Sultana, R. 20, 41 Sunni, Sunniism 11, 82, 86, 90–94, 141, 155 Superfine, B. 31, 41, 46, 52, 57, 172, 180 Sweden, Swedish 5, 18, 69, 75–76, 78, 81, 86, 94, 102, 106, 116, 120, 127, 136, 139, 143, 158 Swift J. 138, 152 Swimming lessons 4–5, 11, 53, 119, 127–128, 155, 163 Switzerland, Swiss 4, 11, 13, 17, 27, 33–34, 45, 53, 55, 83, 103–105, 110, 114, 119–120, 126, 127–131, 155, 158, 161, 165–166 Symbols 8–9, 11, 18, 27, 29–30, 44–45, 51, 104–105, 108, 110, 114, 118–125, 127, 130, 142, 145, 155–157, 162–163, 170, 172, 177 Szakács-Behling, S. 20, 41 Tavory, I. 52, 57 Teachers/teaching 1, 3, 10–11, 16, 21–22, 25–27, 30–31, 43–49, 54, 58, 62–64, 77–82, 86–91, 93–94, 98, 114–115, 119–120, 123–126, 129–130, 136–140, 142, 148, 154–158, 162, 177–178; see also Indoctrination; Learning; Agency, of teachers 11, 19, 99, 101–103, 106–110; Clothing/dress 11, 27–28, 45, 53, 103–110, 119, 129, 164; Contrasted with education 62–70; Individual cases 103–109; Personal religious beliefs 53, 106–110; Teacher Talk 102–103, 105, 110, 115, 117, 123; Vocation/ profession 99–100, 104–105, 108 Telhaj, S. 141, 152 Temperman, J. 26–27, 29–30, 42 ter Avest, I 118, 134 Terrorism, terrorist 8, 17, 79 Tests, testing 19, 135–136, 142; see also Assessment; Examinations Textbook 1–2, 20, 80, 87–88, 91, 102, 116, 141, 154, 156 Thobani, S. 79, 97 Thoenes, S. 18, 36 Timmermans, S. 52, 57

190 Index Torah, The 102 Tsatsa-Nikolovska, M. (Judge) 83, 104 Tulkens, F. (Judge) 83, 144 Türkmen, B. 85, 87, 97 Türkiye, Turkish 11, 13, 17, 27–28, 30, 33, 44, 54, 82, 85–94, 102, 106, 124, 131, 141–142, 149, 154, 158, 161, 163, 165, 170–171, 179 Turner, D. 18, 42 Ugrekhelidze, M. (Judge) 86 Ukraine 5, 17 Ulfstein, G. 16, 36 United Kingdom/UK 8, 10, 14, 17, 23, 53, 58, 62–67, 80, 97–98; see also England; Northern Ireland; Scotland; Wales United Nations 16, 19, 26–27, 42, 83 UNESCO 18–19, 24, 42 Vacca, M. 22, 42 Vajić, N. (Judge) 83, 120 Valle, J.M. 20, 39 van der Want, A. 99–100, 111, 113 Vatican, The 22, 101, 106 Verdross, A. (Judge) 69, 71 Vehabović, F. (Judge) 106–107 Vignoles, A. 140, 150 Vilhjálmsson, T. (Judge) 63 Villiger, M. (Judge) 5, 106 Vince M. 100, 113 Voeten, E. 16, 42, 51, 57 von der Lippe, M. 103, 111 Vygotsky, L. 98, 113

Wales 32, 49, 163; see also UK Wareham, R. 62, 69, 74, 163, 168 Warnick, B. 66, 68, 74, 175, 180 Watt, H. 100, 113 Weisse, W. 80, 97 White, J. 68, 71, 74 Wildhaber, L. (Judge) 83, 104 Wiliam, D. 137, 152 Willlaime, J.-P. 38 Withdrawal, from lessons (also Opt-out) 3, 11, 62, 76, 128, 149 Wollstonecraft, M. 60, 74 Woods, K. 136, 152 Wright, A. 78, 97 Wundt, W. 46, 57 Yalçın and Others v. Türkiye 11, 13n6, 30, 53–54, 75, 77, 82, 85, 91–94, 102, 142, 149n5, 154, 157–158, 163, 165n6, 170, 179n3 Yang, Y. 100, 113 Yolcu, H. 18, 42 Yudkivska, G. (Judge) 5 Zambeta, E. 22, 35 Zekia, M. (Judge) 69 Zembylas, M. 100, 113 Zengin v. Türkiye 11–12, 13n5, 30, 44, 53, 54n2, 82, 85–94, 102, 128, 141–142, 148, 149n2, 154, 147–148, 163, 165n5 Zilliacus, H. 101, 113 Zucca, L. 8, 14, 60, 74, 118, 134 Zupančič, B. (Judge) 5