Beyond Accommodation Fatigue? The European Court of Human Rights’ Inclusion of Religious Diversity in Education

Abstract

The management of religious diversity has become a central concern for European countries, particularly within the sphere of education. It has been questioned before the European Court of Human Rights (ECtHR) approach towards religious diversity through indirect discrimination and the proportionality test. While this approach has yielded positive outcomes in workplace contexts, its application in educational settings reveals distinctive challenges, especially given the pluralistic and often contested nature of public education in Europe. This article undertakes a comparative analysis of how the ECtHR’s development of concepts such as indirect discrimination and differential treatment in educational cases shapes the broader understanding of religious diversity. It examines the Court’s evolving and at times inconsistent jurisprudence, which oscillates between affirming individual rights and upholding collective interests such as social cohesion and secularism. The analysis highlights that the management of religious diversity in education cannot rely solely on legal accommodation; it requires a nuanced interplay between legal standards, institutional practices, and societal engagement.

1. Introduction

In recent years, as European societies have become more diverse, their judicial systems have been attempting to address the tensions in public life caused by ethnic, cultural and religious differences. The question of whether to adopt the North American approach of reasonable accommodation beyond disability to address these differences was first raised years ago (Waddington 2011, p. 188; Henrard 2012, p. 66). Back then, Europe was still in the early stages of developing the concept of substantive equality, with no signs of ‘accommodation fatigue’ yet evident, and the concept of ‘deep equality’ was still in its infancy (Alidadi 2012, p. 713; Henrard 2016, p. 982). Even today, international law explicitly recognizes a duty to reasonably accommodate only in the case of disability. While some authors have proven its benefits in the workplace, its consistent application in education remains to be seen (Bader et al. 2013, p. 72; Griera et al. 2014, p. 13; Vickers 2025, p. 16). Despite the promising beginnings of the concept of indirect discrimination the case law evidences the limitations of these methods as minorities still feel that they are in vulnerable positions over the dominant majority. Religious minorities are in a position of discriminatory treatment related most commonly to the lack of addressed needs by the current legal systems (M. F. Cavalcanti 2024, p. 63). The necessity of addressing these issues at the supranational such as the ECtHR becomes more relevant, when we consider that minorities of any kind should not be dependent on state recognition or citizenship to be protected. As Europe becomes more religiously diverse, new educational challenges arise that require schools and administrators to address issues with which they have no prior experience. At the same time, the ECtHR is reevaluating the margin of appreciation given to states. In education, the interplay of different rights and obligations enables states to establish their educational ethos and neutrality while considering parents’ rights to provide religious education for their children and the best interests of the child. Highly controversial cases have revealed that the Court’s position on these matters has been heavily criticized for providing a wide margin of appreciation and giving states discretion in ruling on these matters. This has resulted in disagreements about consensus and inconsistent outcomes, as seen in Lautsi I and Lautsi II (Relaño Pastor 2011, p. 426; Zucca 2013, p. 226). In the following sections, I will examine how the ECtHR applies the concepts of reasonable accommodation and differential treatment as means of combatting structural disadvantages in education. To support my argument, I will discuss cases involving students, including exemptions from certain teachings and the use of religious veiling in educational settings. The aim is to establish whether the Court is reaching an accommodation fatigue, or whether the methods used are effectively managing religious diversity at the ECtHR level.

2. Reasonable Accommodation as Indirect Discrimination in the ECtHR

Although the ECtHR has not explicitly recognized a duty to reasonably accommodate religion, it has addressed the issue indirectly by applying a proportionality test under Articles 9 and 14 of the European Convention on Human Rights (ECHR). Article 9 of the ECHR safeguards freedom of thought, conscience, and religion, with the ‘forum internum’ of this right being beyond state interference. However, the ‘forum externum’ of this right can be limited by the state for reasons such as public safety or protecting the rights and freedoms of others (Alidadi 2012, p. 703). In conjunction with Article 9, Article 14 of the ECHR protects against religious discrimination. These provisions safeguard the right of individuals to hold or not to hold religious beliefs, and to practice or not to practice a particular religion, protecting atheists, agnostics, skeptics and those who are unconcerned, as well as newer religious movements (Guide on Article 14 2025, p. 34). Furthermore, religion and belief are considered personal and subjective, and not necessarily related to a church or religious institution. When it comes to defining religion and belief, the ECtHR seems to have adopted a more subjective approach, recognizing behavior as a ‘manifestation of religion or belief’ based on the motivations cited by individuals who claim to have experienced discrimination on these grounds (Kara et al. 2024, p. 58). In addition, the word “religion” is defined neither by the text of Article 9 nor in the Court’s case law. This is mostly due to the impossibilities of making a definition on religion encompassing enough to embrace the whole range of religions worldwide and specific enough to be applicable to individual cases (Guide on Article 9 2019, p. 8).

The concept of reasonable accommodation originated in United States legislation with the 1964 Civil Rights Act and the 1972 Equal Employment Opportunity Act, which aimed to combat discrimination in the labor market (de Campos Velho Martel 2011, p. 88). However, it was not until the Americans with Disabilities Act (ADA) was passed in 1990 that the concept became more prevalent (Karlan and Rutherglen 1996, p. 5). Although both the United States and Canada can be considered to be the birthplaces of reasonable accommodation, the concept is interpreted more broadly under Canadian law than under American law (Bribosia et al. 2013, p. 139). In both countries, the duty of reasonable accommodation was initially recognized in the context of non-discrimination on religious grounds, later extending to cases of disability discrimination (de Campos Velho Martel 2011, p. 89; Howard 2013, p. 74). At the ECHR level, it has only been recognized the importance of ‘reasonable adjustments’ only in relation to disability as part of the prohibition of discrimination on the grounds of disability under Article 14 of the ECHR. In addition, the concept of reasonable accommodation is neither defined nor mentioned in the case law (Lawson 2012, p. 846). At the EU law level, the Employment Equality Directive prohibits direct and indirect discrimination and provides a framework for reasonable accommodations for individuals with disabilities, but does not include it on the grounds of religion or belief (Alidadi 2021, p. 284). The approach that the ECtHR’s has taken to reasonable accommodation most closely resembles the concept of indirect discrimination, although they are characterized by important differences (Alidadi 2021, p. 288). Indirect discrimination occurs when seemingly neutral provisions, practices, or policies have a prejudicial impact on certain individuals or groups. Prohibiting indirect discrimination targets measures that favor the majority perspective and thereby disproportionately disadvantage minority group members, even if they are not discriminatory themselves. Prohibiting indirect discrimination implies making reasonable adjustments, which are closely related to the widely accepted principle of equal treatment. However, indirect discrimination only enables us to determine whether a provision, criterion, or practice is discriminatory. The method of indirect discrimination has limitations because it lacks a vital element of reasonable accommodation: it emphasizes what needs to be done to foster equality more than what should not be done (Crowley 2022, p. 12). Most importantly, reliance on indirect discrimination provisions leads to a reactive approach, which is less effective than the proactive approach inherent in the duty underlying the concept of reasonable accommodation (Crowley 2022, p. 17). The concept of indirect discrimination can be understood to be more overarching as it places a higher burden or duty on employer or administrations as it is directed towards rules or legislation that, although being seemingly neutral, may disproportionately disadvantage individuals. In comparison, reasonable accommodation focuses on addressing individual situations and asses the reasonableness of their demands for an accommodation (Beaman 2012, p. 8). Conversely, reasonable accommodation enables courts to apply an exemption to a general rule when they are confronted with the limitations of legal provisions but with subjective situations (M. Cavalcanti 2022, p. 362). In the end, reasonable accommodation allows one to relieve certain individuals or groups which are characterized by a distinct cultural identity from a rule of general application while indirect discrimination questions a policy or measure that is thought to disadvantage an entire group by its structure. This allows the reasonable accommodation to be more exemption driven, while indirect discrimination provides a preventive framework for rules or regulations to be protected in the future to avoid potential similar situations in the future. However, to provide this framework, it is required to prove a group disadvantage through a comparison exercise, meaning that persons of a particular faith or religion should demonstrate that they are in a disadvantage position compared to others. On the contrary, reasonable accommodation does not require showing a group disadvantage as its objective is to fulfill individual needs (Alidadi 2021, p. 289). However, reasonable accommodation as a method becomes more consistent when it is applied to a specific contexts, such as what happened in the US or Canada. When it comes to applying these concepts to a group of member states such as the jurisdiction of the ECtHR, the boundaries between legal concepts such as reasonable accommodation and indirect discrimination become blurred as they operate differently in each context and country (Waddington 2011, p. 7).

The ECtHR’s case-by-case approach to accommodating religious claims allows for bespoke solutions, which would not be possible due to the group disadvantage requirement of indirect discrimination. One could argue that the ECtHR’s approach to reasonable accommodation constitutes indirect discrimination where the extent of the undue burden is equivalent to the disproportionate impact. In the U.S., for example, the concepts of “undue burden” and “undue hardship” originate from the Americans with Disabilities Act (ADA). According to the ADA, an accommodation constitutes an undue burden if it would incur high costs, involve substantial changes, cause significant disruption, or fundamentally alter the nature or operation of the business. In cases of discrimination in the workplace, employers often argue that reasonable accommodation would impose an undue burden, which explicitly allows factors such as economic costs to be taken into account. In this regard, depending on the standard adopted to assess reasonable accommodations, indirect discrimination may be considered a more effective tool for minority employees (Alidadi 2021, p. 288). In Canada, a discriminatory measure can only be justified if it is demonstrated that accommodating employees with the same characteristics as the complainant would impose undue hardship on the employer. Consequently, employers shall accommodate individuals’ characteristics as much as is reasonably possible, and exemptions from the duty not to discriminate are strictly limited (Waddington 2011, p. 189). In this regard, Canadian courts have recognized duties to accommodate not limited to persons with disabilities but also including religion. While Canada’s approach duty to reasonable accommodation comes from substantive equality law principles, in the US, although having a similar approach, there is only a recognition of a duty to reasonably accommodate up to the point of undue hardship (Waddington 2011, p. 190). In this regard, the ECtHR does not explicitly mention reasonable accommodation beyond disability but indirect discrimination has been applied when an individual’s specific needs are not addressed due to differing circumstances (Crowley 2022, p. 20). While indirect discrimination has the possibilities to challenge structural disadvantages, it only allows individuals to challenge the results of such practices in limited circumstances (Alidadi 2021, p. 294). In the end, indirect discrimination is only a small part of equality law and policy making when it comes to discrimination. Therefore, to fight structural discrimination, indirect discrimination seems to be limited to context and circumstances, similarly to reasonable accommodation addressing individual claims.

The ECtHR began to adopt a proportionality test and recognition of indirect discrimination to accommodate religious practices in its case law from (Thlimmenos v. Greece 2000, Application No. 34369/97). Generally speaking, the principle of proportionality applies to any state interference with a restriction of human rights. According to this principle, any state action affecting human rights must be deemed necessary and appropriate by the state in each case. All legal actions and decisions taken by public authorities must be relevant, meaning the intended measure must be appropriate for achieving the legitimate aim pursued by the public authority. In addition, proportionality is a crucial tool for courts, such as the ECtHR, that must balance various human rights and interests. In such cases, judges weigh these rights and interests, ultimately prioritizing one to strike a reasonable balance (Trykhlib 2020, pp. 138–40).

In Thlimmenos, a Jehovah’s Witness was denied a position as a chartered accountant due to a previous conviction for conscientious objection, as they had refused to perform military service for religious reasons. The Court ruled that the principle of non-discrimination enshrined in Article 14 only prohibited the state from treating individuals in analogous situations differently without objective and reasonable justification (Rea and Jacobs 2011, p. 93; Bowers 2021, p. 287; Alidadi 2012, p. 703; Ringelheim et al. 2010, p. 153; Thlimmenos v. Greece 2000, para. 44). In effect, the Court accepted that the prohibition of discrimination encompasses a duty to treat people differently who are in different situations (Henrard 2016, p. 966). In this case, the Court concluded that failing to introduce appropriate exemptions was also identified as a means of evading what could be called a “duty to accommodate” (Thlimmenos v. Greece 2000, para. 48). The ECtHR never used the terms ‘indirect discrimination’ or ‘reasonable accommodation’ in this case; however, Thlimmenos is sometimes credited with introducing these concepts into the Court’s case law (Alidadi 2012, p. 703). Although reasonable accommodation is usually categorized under the equality framework, it can also be considered the state’s positive obligation to ensure the effective enjoyment of particular rights. As Henrard stated, examining the European understanding of the equality framework, particularly in the context of Thlimmenos, it becomes evident that the duty of differential treatment is closely linked to the prohibition of indirect discrimination (Henrard 2016, p. 964). In fact, the concept of reasonable accommodation stems from the principles of substantive equality and the prohibition of discrimination. While the terms ‘indirect discrimination’ and ‘reasonable accommodation’ are used similarly in different countries and jurisdictions, the latter is primarily associated with legislative measures for specific individuals or groups (Bribosia et al. 2013, p. 67). There have been several decisions after Thlimmenos that have marked the understanding of the concept of indirect discrimination, one of the most notable being Glor v. Switzerland (Application No. 13444/04). The case concerned a Swiss applicant with diabetes who was deemed unfit for military service. However, he was required to pay military taxes, whereas individuals with significant disabilities were exempt. According to the Court, given his condition, the applicant could have been offered an alternative form of military service. As the state did not provide this option, it was deemed to have violated the prohibition of discrimination by failing to accommodate (Ferri 2018, p. 46; Henrard 2012, p. 68; Ringelheim et al. 2010, p. 196; Waddington 2011, p. 196). Soon afterwards, in the landmark case of Eweida and Others v. the United Kingdom (Applications Nos. 48420/10, 59842/10, 51671/10 and 36516/10), which concerned the prohibition of wearing a crucifix at British Airways, the notions of proportionality and indirect discrimination received more explicit consideration (Bowers 2021, p. 290; Griffiths 2016, p. 163). In Eweida, the Court did not identify any specific factors to determine the extent of the margin of appreciation under Article 14, but reiterated that the scope of the margin of appreciation varies according to the circumstances of each case (Henrard 2016, p. 982). To some extent, the Eweida case confirmed that ‘separate but equal’ provisions are generally not considered an acceptable defense against discrimination claims (Vickers 2025, p. 10). This recognizes the ECtHR’s remit in Article 14 to prohibit discrimination. However, in cases such as Ladele v. United Kingdom (Application No. 51671/10) and Chaplin v. United Kingdom (Application No. 59842/10), the Court continued to argue for a wide margin of appreciation. In the latter case, the Court deemed that protecting the right to health in a hospital outweighs the corporate image and concluded that the country’s public authorities are best placed to address such issues (Crowley 2022, p. 28). This line of argument can be justified in either direction. One could argue that the Court is neglecting its obligation to ensure the ruling’s proportionality by granting discretionary power to the national authorities. However, granting a wide margin of appreciation sometimes allows for better management at a local level of religious diversity. States are best suited to managing their own religious pluralism because they have the necessary experience and knowledge in this area. By granting a wide margin of appreciation, the ECtHR prioritizes the state’s assessment of events, phenomena, and facts within its own jurisdiction. This margin provides a context that considers the state’s interference and proportionality.

On a similar note, in the 2024 case of Lindholm and the Estate of Leif Lindholm v. Denmark (Application No. 25636/22), concerning a Jehovah’s Witness who received a blood transfusion in hospital without consent, the Court ruled that the indirect discrimination was ‘objective and reasonable’ as it pursued the legitimate aim of protecting health (Lindholm and the Estate After Leif Lindholm v. Denmark 2024, para. 108). According to the Court, there was a reasonable relationship of proportionality between the means employed and the aim sought to be realized. However, in Anderlecht Christian Assembly of Jehovah’s Witnesses and Others v. Belgium (Application No. 20165/20), the Court concluded that the difference in treatment to which the applicant associations were subjected was not objectively or reasonably justified. This was because the tax exemption in question depended on prior recognition and was governed by rules that did not provide adequate protection against discrimination. Several years on from the landmark cases of the early 2000s and 2010s, the Court still seems reluctant to expand on its initial, promising reference to the duty of differential treatment in Thlimmenos. Furthermore, it has failed to provide the contracting states with consistent guidance on conducting proportionality reviews in the context of religious diversity.

3. ECtHR’s Approach to Proportionality and Differential Treatment in Education

3.1. Exemptions in Educational Settings for Students

The Court’s reasoning on margin of appreciation and self-governance does not exclude the public education system from its considerations. A wide margin of appreciation may have its downsides, but it also demonstrates sensitivity to states’ self-determination and sovereignty (Tripkovic and Zysset 2024, p. 20). This enables states to regulate their local educational institutions, recognizing them as the most knowledgeable about their historical, political, and cultural contexts. However, an overly generous margin of appreciation can also suggest the Court’s reluctance to rule on certain controversial matters. Some have described this as the Court hiding behind the margin of appreciation (Henrard 2016, p. 981). Accommodating religious demands in education differs greatly from issues in private companies. It concerns not only the children themselves, but also the religious convictions of their parents. Unlike company policies, education is subject to state guidelines or constitutional principles, usually enshrined in law, that limit the extent to which schools can accommodate minority perspectives. Additionally, undue hardship in public school accommodations relies on state funding, which often restricts the ability to address facility changes or regulations. Although difficult to assess, the threshold of undue hardship for companies has several easily identifiable parameters. These include changing job tasks, adjusting products or equipment, and allowing flexible working hours. However, school schedules are fixed to promote work–life balance. Public schools’ equipment and facilities are also limited due to state funding. When a school cannot provide certain accommodations, the easiest solution for administrators is to transfer the student to a different school that might be able to provide such services. This is a common practice in cases involving the wearing of Islamic headscarves, as when internal regulations prohibit the wearing of the headscarf, the solution is usually to force the student to take off their headscarf or be transferred to a school that allows the wearing of such symbols. A useful analytical distinction can be drawn between ‘hard’ and ‘soft’ hardship scenarios. According to the Canadian Council on Rehabilitation and Work, ‘soft’ cases refer to those workplace accommodations that do not require any equipment or products such as alternative work arrangement or offering flexible working hours. On the contrary, ‘hard’ workplace accommodations include technology, equipment, and modifications to the physical environment. This distinction is employed to capture differences in the institutional burden, conflict intensity, and feasibility of accommodation which are evident when it comes to cases involving people with disabilities (Fiala-Butora et al. 2025, p. 9). The ECtHR has also ruled that Article 14 does not prevent Member States from treating different groups differently if their situations are significantly different. Therefore, failing to attempt to correct inequality through different treatment may itself constitute a breach of that provision (Reasonable Accommodation for Persons with Disabilities ECtHR and CJEU Case-Law|European Union Agency for Fundamental Rights 2025, p. 2). This line of argument can be used as well in educational settings involving religious beliefs, where ‘soft’ cases such as the wearing of the Islamic headscarf would not entail undue hardship for the school administration because it would only require the school regulation or the willingness of the administrators to allow the student to attend class, without additional economic or facility costs. However, cases involving religious classes might require new classrooms, additional teachers, and adapted school hours for religious reasons.

One of the earliest decisions concerning the content of teachings was the 1976 case of Kjeldsen, Busk Madsen and Pedersen v. Denmark (Applications Nos. 5095/71, 5920/72 and 5926/72). In this case, two parents of Christian origin were dissatisfied with the provision of compulsory sex education at their children’s school because they believed it conflicted with their Christian convictions. Even in this early case, the Court had to balance the need to accommodate minority beliefs within the context of a broader public education system, while respecting the margin of appreciation and state sovereignty with regard to education systems. The Court found that providing sex education does not amount to accommodation if it is presented in an objective and pluralistic manner (Kjeldsen, Busk Madsen and Pedersen v. Denmark 1976, para. 53). Some might argue that there was no balance of proportionality, as the parents ultimately had to comply with state regulations (Power-Forde 2016, p. 589). However, the Court did consider alternatives, and the applicants had the option of enrolling their children in a private school or homeschooling them, as permitted by the Danish government. This exempted them from this teaching in accordance with the parents’ religious and moral convictions. Years later, in Dojan and Others v. Germany (Application Nos. 319/08, 2455/08 and 7908/10), the ECtHR addressed the issue in a similar context. The Court found that parents could not demand exemptions for their children from sex education classes or other school events that conflicted with their religious beliefs. As in the previous case, the Court emphasized that the purpose of such education was to impart information on procreation and contraception in a neutral, scientifically grounded manner. Although alternative activities were offered to children in some instances, the applicants chose to prevent their children from attending various school events altogether, resulting in administrative fines. The Court concluded that Germany had acted within its margin of appreciation by not granting further exemptions and noted that the applicants were free to provide religious instruction at home. The Court considered this to be sufficient and deemed the sanctions imposed on the applicants and the obligation for children to participate to be proportionate (Dojan and Others v. Germany 2011, para. 3). This line of argument has also been used in cases regarding ethics classes, which are highly controversial in some countries that have introduced them into their curricula. In Appel–Irrgang and Others v. Germany (Application No. 45216/07), the Court ruled that, as with sex education, the purpose of ethics classes is to explore ethical issues objectively and from a variety of perspectives. In its argument the Court stated that ethics education does not conflict with the right to respect parents’ religious and philosophical convictions. Parents can continue to provide religious instruction at home, and ethics education does not conflict with those religious beliefs.

Similar situations have also sparked controversy among the various state members of the Council of Europe, with religious minorities and agnostic families requesting exemptions from religious education. One of the key cases regarding this issue involves the disciplinary measure of suspension imposed by school authorities against a student who refused to participate in a commemorative event for a war, as demonstrated in the Valsamis v. Greece case (Application No. 21787/93). While the applicants believed that the Court should have struck a balance to ensure fair and equitable treatment of minorities and prevent the abuse of dominant positions, the Court ruled that such commemorations, ostensibly from a pacifist perspective, did not conflict with the religious beliefs of the applicant’s Jehovah’s Witness parents (Valsamis v. Greece 1996, para. 27). This is not surprising, as Greece has generally had a complex relationship between the state and the church, especially concerning religious education. In 2019, in Papageorgiou and Others v. Greece (Applications nos. 4762/18 and 6140/18), the Court examined the requirement for parents to submit a solemn declaration, countersigned by a teacher, confirming their children’s non-Orthodox Christian status to be exempt from religious education. Unlike in Valsamis, the Court ruled in this case that Greece’s exemption system could impose an undue burden on parents. However, it was reaffirmed that religious education in Greece predominantly focuses on the Orthodox tradition, aiming to strike a fair balance between tradition and diversity without fostering indoctrination (Papageorgiou and Others v. Greece 2019, para. 25).

A similar scenario arose in Folgerø and Others v. Norway (Application No. 15472/02), where the refusal to exempt a student from religious education was deemed a violation of parents’ rights to raise their children according to their religious beliefs. Nonetheless, the Court acknowledged that denying an exemption would breach Article 2 of the First Additional Protocol to the Convention, as no alternatives to the religious instruction were provided. This article mandates that education in state schools must be pluralistic and free from indoctrination. Although religious instruction in public schools is permitted, it must be inclusive and offer exemptions or alternatives for students who do not wish to participate. Consequently, the refusal of national authorities to grant an exemption from religious education that lacks sufficient pluralism violates the right to education. Remarkably, the Court upheld this reasoning in the Hasan and Eylem Zengin v. Turkey (Application No. 1448/04) case, ruling that denying a total exemption from non-pluralistic religious instruction also breaches the right to education. Countries generally legislate for the normative majority, and this extends beyond education (Alidadi 2012, p. 699). Work schedules and school festivities are designed to align with the majority, which can make minorities feel unheard and disproportionately disadvantaged. The Court’s recognition of the absence of exemptions or alternatives as a violation of Article 2, Protocol 1, demonstrates its adoption of the principle of indirect discrimination. The Court acknowledges that seemingly neutral laws can have prejudicial effects on individuals and that states may indirectly violate Protocol 1 by failing to provide exemptions or alternatives when requested. While providing a wide margin of appreciation to enable states to shape their curricula according to their constitutional values, the Court requires that indoctrination be avoided and that a pluralistic approach be adopted. This situation was evident when it comes to religious veiling and religious prescriptions in the case of Osmanoğlu and Kocabaş v. Switzerland (Application No. 29086/12). In this case, the Court applied the proportionality test to determine if the authorities’ refusal to exempt the applicants’ daughters from swimming lessons was necessary for a democratic society that maintains religious pluralism (Osmanoğlu and Kocabaş v. Switzerland 2017, p. 110). In this case the regional authorities considered prioritizing the children’s obligation to fulfil their obligations to be instructed with the full curricula for integration purposes over the interest of the parents in being granted an exemption for their religious beliefs. Therefore, the Court concluded that there was no violation of Article 9 of the ECHR and the domestic authorities did not exceed the considerable margin of appreciation afforded to them in compulsory education cases. The main argument relied on the Court’s refusal to grant an exemption because educational obligations take precedence over the religious beliefs of a segment of the population (Osmanoğlu and Kocabaş v. Switzerland 2017, p. 20). Once again, the Court avoided providing alternatives or adjustments that would allow compliance with educational obligations while respecting religious beliefs.

3.2. Religious Symbols in Education

As previously mentioned, the diverse nature of most ECtHR member states has led the Court to consider assertions of principles such as human dignity and differential treatment. The right to be considered different, usually held by cultural and religious minorities, contributes to the development of the human personality. This argument is evident in debates surrounding religious symbols, particularly the religious veiling of minorities, which serves as an identity marker. In the case of Muslim minorities, the demands for recognition made by Islamic minorities in Europe highlight the complex interplay between religion, and processes of recognition of rights (M. F. Cavalcanti 2024, p. 59). For example, regarding the wearing of the Islamic headscarf, the Court deemed the ban on teachers wearing headscarves to be justified and proportionate to protect the rights and freedoms of others, as well as public order and security. Furthermore, the Court has stated that wearing the Islamic headscarf may conflict with principles of gender equality (Mancini 2012, p. 412; Vakulenko 2007, p. 189). Historical Orientalism is sometimes evident in cases involving Muslim women wearing religious veiling in European courts, and the ECtHR is no exception. These women are often viewed as victims of an oppressive, monolithic cultural structure. Furthermore, the Islamic headscarf is sometimes presented as a symbol of seclusion and oppression, depicting these women as carriers of an “other” culture. By linking the headscarf to Islamic fundamentalism, gender discrimination, and a proselytizing effect incompatible with the European Convention, the Court has made it clear on several occasions that the Islamic headscarf can be deemed as being incompatible with European values (Nigro 2010, p. 560; Skeet 2019, p. 36). In the Leyla Şahin v. Turkey (Application No. 44774/98) case, concerning the applicant’s refusal to be admitted to university courses due to wearing the Islamic headscarf, the Court clearly stated that the right to education is not absolute. Any limitations on the right to education must pursue a legitimate aim, but will only be incompatible with this right if the means used are disproportionate to the aim pursued. In the Kervanci v. France case (Application No. 31645/04), the Court made a similar statement, ruling that the right to education under Article 2, Protocol 1, does not prevent schools from restricting religious freedom through disciplinary measures or internal regulations, provided the measures are proportionate and serve a legitimate purpose. This case highlighted that the Court may interpret Islam as conflicting with the democratic values referred to in such instances as Şahin or in Dahlab v. Switzerland (Application No. 42393/98). This makes it difficult to reconcile the Islamic headscarf with a message of tolerance and exemplifies the aforementioned Orientalism, depicting Europe as a Christian and “secular” region (Høstmælingen 2012, p. 106).

While the ECtHR can rule on whether the education authorities have acted in accordance with the human rights principles enshrined in the Convention, it does not have the authority to substitute its own vision for that of the disciplinary authorities. State educational authorities have direct and continuous contact with the educational community and are therefore best placed to evaluate local needs, conditions, and the requirements of a particular training program (Mcgoldrick 2009, p. 438). One of the most recent cases concerning the wearing of the Islamic headscarf in education was Mikyas and Others v. Belgium (Application no. 50681/20), in which the Court declared it inadmissible. In this case, pupils were banned from wearing the Islamic headscarf at school, except during non-denominational religious and ethics classes. The parents, acting as the pupils’ legal representatives, considered this ban to be contrary to freedom of religion. Previous ECtHR cases have demonstrated that prohibiting pupils or students from wearing the headscarf in a school or university environment can be justified for protecting the rights and freedoms of others and maintaining public order. According to Flemish regulations, state neutrality implies respect for the philosophical, ideological or religious convictions of parents and pupils. To satisfy this constitutional requirement, the Council of Education in the Flemish Community introduced a general prohibition on wearing visible symbols of belief in establishments under its control. The Constitutional Court held that this interpretation of neutrality was compatible with the Constitution, reiterating the margin of appreciation enjoyed by national authorities in regulating the wearing of symbols of belief in the state education system. Furthermore, the ECtHR considered that the concept of neutrality in the Flemish education system did not contravene Article 9 of the Convention and its underlying values. The applicants had chosen to attend schools within the community education system and must have been aware that the relevant governing bodies were constitutionally required to ensure compliance with the principle of neutrality in such schools. They had also been informed of the applicable rules in advance and had agreed to abide by them.

Although the Court appeared to apply the principle of indirect discrimination to cases involving educational exemptions, its jurisprudence on the wearing of the Islamic headscarf suggests an inability to properly assess the proportionality aspect when it comes to certain minority claims, which exemplifies a non-consistent way of applying the principle of indirect discrimination and proportionality in educational settings. As a general overview, in most educational settings, the introduction of a ban on head coverings in schools was not intended to affect religious minorities disproportionately, such as Muslims and Sikhs, but rather to maintain order and a code of conduct in classrooms. However, concerns have been raised about the possibility of states indirectly discriminating against religious minorities due to this approach’s inadequacy regarding their religious practices. This returns to the same line of argument in Thlimmenos, when seemingly neutral laws, or in this case, a law that was meant to create a code of conduct, indirectly discriminates against religious minorities due to their beliefs. For a better management of religious diversity in education, the principles of indirect discrimination and the proportionality test should continue to be developed in order to recognize the “right to be different” for religious minorities in educational settings. This means that different individuals should be treated differently, as the recognition of indirect discrimination acknowledges that neutral laws affect certain individuals differently. As Topidi pointed out, the protection of religious freedom in public schools should not be based solely on normative statements of human rights derived from domestic or international provisions. Existing differences also require protection at an individual level (Topidi 2020, p. 17). Therefore, if the ECtHR is to address religious diversity to challenge structural disadvantages, it should continue to recognize differential treatment and indirect discrimination. In the context of education, this might mean that managing religious diversity in education for a supranational court should start recognizing the protection of being different. As in Thilimmenos, it is a question of striking a balance between recognizing indirect discrimination and applying the proportionality test. Concepts such as equality get trapped in a duality between recognizing differences and expecting cultural sameness (Gozdecka and Ercan 2015, p. 37; Topidi 2020, p. 25). States should not treat people in similar situations differently without providing an objective and reasonable justification. This becomes more visible with the binary representation of majority religious symbols and minority religious symbols, especially when it comes to symbols such as the crucifix and the Islamic headscarf. In the Dahlab case, the Court did not require the Swiss authorities to demonstrate that a teacher wearing a headscarf would influence her pupils. Conversely, in the Lautsi (Application No. 30814/06) involving the crucifix in Italian classrooms, the Court concluded that the absence of evidence indicated that the display of the crucifix did not influence children (Gunn 2012, p. 113). When the Grand Chamber later overturned this decision, it justified its departure from earlier case law by emphasizing the distinction between Christian and Islamic symbols (Skeet 2019, p. 43). In Lautsi, the Grand Chamber reinforced the idea that states are responsible for ensuring the neutral and impartial exercise of various religions, faiths and beliefs, particularly between opposing groups referring specifically to the Sahin case (Lautsi v. Italy, para 60). In several occasions the Court has stated that individuals must comply with potentially discriminatory regulations while concluding that pluralism and democracy are based on dialog and compromise, which necessarily entail various concessions on the part of individuals (Berry 2023, p. 25). This is also argued in Mikyas, as it concluded that these concessions are justified to maintain and promote the ideals and values of a democratic society (Mikyas and Others v. Belgium, legal reasoning 2). As religious diversity becomes more prevalent in Europe’s public education systems, the need to further embrace the concepts of proportionality and indirect discrimination becomes apparent. When seemingly neutral laws indirectly discriminate against individuals, administrations and schools should take the necessary steps to treat different situations differently and make proportionate efforts.

4. Conclusions

In educational settings, accommodating the demands of religious minorities should not be limited to a decision based on reasonableness or proportionality. The ECtHR should take into consideration several rights, obligations, and nuances that are different to those in employment cases. This includes aspects such as the right of parents to educate their children according to their own convictions, the autonomy of schools to regulate their own educational ethos, and, most importantly, the best interests of the child. Rather than acting similarly to employment cases, the Court should consider the variety of principles at stake. ECtHR case law in education in this matter illustrates the difficulty of striking a balance between ensuring a minimum level of tolerance and peaceful co-existence between different cultures, and asserting universal rights as a remedy and common ground for Western democracies (Topidi 2020, p. 69). In addition, the approach taken by the ECtHR on margin of appreciation is problematic. This is mostly due to what Fokas and Richardson defined as a fact-based case that carefully weighs “trade-offs on key issues such as religious freedom vis-à-vis diversity and pluralism” (Fokas and Richardson 2017, p. 168). Conversely, the religious diversity in schools evidences the necessity to make room for the right to cultural and religious difference in education (M. Cavalcanti 2022, p. 361). Accommodation fatigue does not come from unreasonable accommodations or privileging minority positions but from a lack of understanding on the necessity to recognize that individuals are in different situations and require different needs and accommodations. Although general educational legislation and regulations are meant to treat everyone equally, students and teachers face the reality that there is a need for institutional flexibility that allows for accommodation if it is not, at group-level, indirect discrimination, at least on an individual case basis. Some individuals are more vulnerable or have different needs than others, and religious prescriptions usually entail a certain extent of nuances that are not usually addressed in educational regulation at the schooling level. Some individuals are also in a disproportionate disadvantage on a general rule (Acconciamessa 2023, p. 242). Management of religious diversity entails the recognition of these disadvantages and the recognition of a necessity to address them. While the ECtHR is neither the first court or the most effective one, it should have the necessary methods to deal with these education diversity cases on a proportionate and structured manner. In order to find a balance between equality principles and the protection of the right to difference of minor religious communities, public educational authorities should be required to demonstrate the necessity of actions that restrict human rights (Trykhlib 2020, p. 129). In other words, any actions or measures that a state takes to achieve a legitimate goal and that interfere with human rights and freedoms must pass the proportionality test.

Although being a positive premise, the application of indirect discrimination and the proportionality test have been disappointing (Alidadi 2021, p. 292). In the context of education, formal equality before the law or procedural justice is not enough. Instead, we should seek substantive equality and material justice. Indirect discrimination does not eliminate structural inequalities but brings the opportunity for individuals to challenge regulations. Reasonable accommodation is not a system which can address religious diversity accommodations as its claim is not to eradicate structural discrimination but to give exemptions towards potentially exclusionary practices in a less confrontational way. When public educational authorities restrict the rights of religious minorities, they must justify the necessity of the measure within a democratic society. This could be improved if the Court made more systematic use of the proportionality test developed by national courts. A wider margin of appreciation would be more appropriate if national courts adopt a positive attitude towards the religious factor, as there would be no need to determine whether the legislature or administration had struck a reasonable balance. However, if we were to provide a narrow margin of appreciation, it would require a more intense review by the Court (Gerards 2013, p. 487). The latest underdevelopment of national and supranational courts with regard to concepts such as substantive equality or indirect discrimination may demonstrate a certain degree of accommodation fatigue, which is also due to unreasonable accommodations and strategic litigation by some minority groups. However, we are approaching a time when minority rights are being overshadowed by worldwide issues and conflicts of greater importance, which seem to have excluded those rights from the latest agenda. Nevertheless, if the ECtHR continues to pursue the arguments outlined regarding indirect discrimination and proportionality, religious diversity in education systems will remain challenging, but at least the Court will have the necessary tools to address it.