Human Rights Law Review 8:3 ß The Author [2008]. Published by Oxford University Press.

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Religious Education in Public

Schools: An International
Human Rights Perspective
Carolyn Evans*

Abstract

The question of whether and how public schools in Europe (and, indeed,
in liberal democracies more generally) should introduce religion into
the classroom has become increasingly important. Children need to be
given the tools to understand the role of religion in their society and in
the world, but they must be protected from indoctrination by their
teachers or school officials. This article takes international human
rights principles as a standard against which different approaches to
incorporating education about religion into public school curricula can
be judged. It argues that ‘plural religious education’ is the approach to
religion in public schools that best complies with international human
rights standards. The recently drafted Toledo Guidelines are recom-
mended as providing useful guidance to States that seek a rights consis-
tent approach to this issue. Both these guidelines and the relevant
case-law of European and United Nations human rights bodies are ana-
lysed and the key guiding principles relating to religious education in
public schools are examined to demonstrate both the utility of the inter-
national human rights approach and its current limitations.

1. Introduction
The education of children in diverse, pluralistic communities is inevitably and
deeply involved in controversial value judgements. The school curriculum has

*Deputy Director, Centre for Comparative Constitutional Studies and Associate Dean (Research)
Melbourne Law School, University of Melbourne ([email protected]). My thanks to
Elizabeth Sheargold and Kirsty Souter for their research assistance with this paper and to
John Tobin for his comments. This paper forms part of a broader project on the relationship
between religious freedom and equality being undertaken by the author with Associate
Professor Beth Gaze and funded by an Australian Research Council Discovery Grant.

...........................................................................
Human Rights Law Review 8:3(2008), 449^473
450 HRLR 8 (2008), 449^473

become the place to solve a whole range of social ills, as well as to teach an
ever growing body of knowledge and skills to equip children for a rapidly
changing world. Teachers are warning increasingly of the ‘crowded curricu-
lum’ and the place of any school subject needs to be justified.1 This is particu-
larly so when it is proposed to teach subject matter that has the potential to
be divisive or controversial. One such topic is education about religious mat-
ters. Some parents and educators believe that a curriculum that includes reli-
gious teachings is the only one that will produce morally fit students;2 others
see discussion of religions to be a dangerous undermining of secularism in
education. Such divisions of opinion can tempt governments to simply leave
an area alone; but increasingly in Europe the issue of education in religion
has been openly debated and the integration of religious knowledge into the
public school curriculum is gaining support.3 Is this support justified?
In this article, I answer two inter-related questions. The first is whether reli-
gion should be taught in public schools in liberal democracies, with a particu-
lar focus on Europe. I answer that there are good reasons for teaching
religions even in secular schools with multi-religious student bodies. The next
question that arises then is how this can be done in a manner that respects
both the religious freedom of the children and parents involved, but also
ensures that broader social needs and the rights of the child to a proper educa-
tion are respected. While there are many approaches to answering these ques-
tions, in this article I take international human rights principles,4 including
those developed by the European Court of Human Rights (ECtHR), as a stan-
dard against which different approaches to incorporating education about reli-
gion into public school curricula can be judged.
The article begins with a brief overview of the key, relevant human rights at
stake in this debate and then moves on to argue that a rights-based approach
best fits with integrating religious knowledge into the curriculum. It then
examines how this can best be done, including the question of whether and
to what extent parents should be allowed to remove their children from classes
that deal with religious knowledge.

1 See, for example, Ward and Barnett, ‘Crowded Curriculum Squeezes Story Time’ (2007) Times
Educational Supplement at 14; Alchin, ‘Life, Mathematics and the Crowded Curriculum’, in
Morony and Stocks (eds), Quality Mathematics in the Middle Years: National Conference
(Fremantle: AAMT, 2005) at 39; and Topolscanyi, ‘EE in the Crowded Curriculum’ (2000) 23
Eingana 8.
2 Shah, ‘Faith in Our Future’ (2001) 23 Whittier Law Review 183.
3 See Council of Europe, Parliamentary Assembly, Recommendation 1396 (1999): Religion
and Democracy, 27 January 1999; and Council of Europe, Parliamentary Assembly,
Recommendation 1720 (2005): Education and Religion, 4 October 2005.
4 Particularly the International Covenant on Civil and Political Rights 1966, 999 UNTS 171
(ICCPR); International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3
(ICESCR); and Convention on the Rights of the Child 1989, 1577 UNTS 3 (CROC).
 Religious Education in Public Schools 451

2. Key Relevant Human Rights Legal Principles

While there are a range of rights that have some bearing on the question of
development of school curriculum and values, the key relevant rights are: the
protection of equality; freedom of religion and the right of parents to have chil-
dren educated consistently with their own values; and the educational rights
of children.

A. Equality and Non-discrimination

The right to equality and the prohibition of discrimination are central to the
international human rights regime.5 Article 2(1) of the International
Covenant on Civil and Political Rights (ICCPR), for example, requires that:
Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of
any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
The prohibition of discrimination and the requirement on States to promote
equality have a number of important implications for the construction of curric-
ula and the types of values that are espoused bya school. For example, curriculum
design should not force students into particular types of education on the basis
of the categories of prohibited discrimination in Article 2. A co-educational
school that designed different teaching streams for girls and boys for example
(with girls being required to take classes in domestically oriented subjects and
boys being required to take more employment-oriented options) would breach
the equality provisions.6 This would be the case even if some religious points of
view see differentiated gender roles as essential. Nor should students be required
to take, or be prohibited from taking, particular courses on the basis of their
race, religion, national origin and so forth.7 Schools should not exclude, penalise

5 In addition to Article 2, ICCPR (quoted in text), see Article 26, ICCPR Article 2 (2), ICESCR and
Article 2, CROC.
6 The Committee on the Rights of the Child, for example, in its General Comment No. 1: Aims of
Education, 17 April 2001, CRC/C/OP/1; 8 IHRR 603 (2001) at para. 10, has condemned ‘overt
or hidden’ discrimination in education and has specifically noted that ‘gender discrimination
can be reinforced by practices such as a curriculum which is inconsistent with the principles
of gender equality, by arrangements which limit the benefits girls can obtain from the educa-
tional opportunities offered, and by unsafe or unfriendly environments which discourage
girls’ participation’. The Committee has also urged State Parties to ‘[t]ake effective measures
to ensure that higher education is accessible to all on the basis of capacity, by promoting the
enrolment of girls and addressing persistent gender stereotypes’, see Concluding
Observations of the Committee on the Rights of the Child regarding Korea, 18 March 2003,
CRC/C/15/Add.197 at para. 53(c).
7 Hartikainen et al. v Finland (40/1978), CCPR/C/OP/1 (1981).
452 HRLR 8 (2008), 449^473

or create more onerous conditions on participation of students simply because

they belong to a minority or disfavoured religious group. While these forms of
direct discrimination have been common and continue to cause problems in
many places, they are relatively simple as a matter of international human rights
law. Such discrimination is prohibited byArticle 2.
More complex are the types of cases where there is no overt or direct
discrimination. Instead, it is argued that the teaching of particular subject
matter, the failure to teach certain subject matter, or the teaching of a subject
in a particular way has unequal or discriminatory effects on children, parents
or teachers. It is this type of discrimination that tends to be the focus of reli-
gious education classes. Examples of such claimed discriminatory effects of
religious education include: some children feel alienated from the curriculum
or face discrimination because they claim exemptions from taking religious
subjects; some parents feel that the school system treats their religion or belief
as less worthy than other religions or beliefs; or some teachers are unable to
teach particular subjects because of their religion or belief. These issues will
be discussed further below.

B. Religious Freedom and Education Consistent with Parental Religious

and Moral Convictions
Another key right to be considered is that of religious freedom and the right of
parents to have children educated consistently with their own values. These
rights are protected in the ICCPR.8 As they are dealt with in a single Article
of the ICCPR, and as parents and children generally share the same religious
values, they are treated together here.9 Article 18 reads:
1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion
or belief of his choice, and freedom, either individually or in community
with others and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to
have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to
such limitations as are prescribed by law and are necessary to protect

8 CROC also recognises the right of children to religious freedom in Article 14 and, to some
extent, Article 12. See also Article 9 of the European Convention on Human Rights and
Article 2 of Protocol 1 of the European Convention on Human Rights.
9 There may, of course, be situations in which these two values conflict, for example, when a
child who wants to be exempted from a religious education class and his or her parents
wish the child to continue. In the international cases to date, the two sets of interests either
coincided or were assumed to coincide. Thus, this issue is not explored in any detail here.
It is, however, one that may become more important in the future.
 Religious Education in Public Schools 453

public safety, order, health, or morals or the fundamental rights and free-
doms of others.
4. The States Parties to the present Covenant undertake to have respect
for the liberty of parents and, when applicable, legal guardians to ensure
the religious and moral education of their children in conformity with
their own convictions.
These rights have a number of implications for teaching in religiously plural
classrooms. First, religious coercion is expressly prohibited. Schools are a
place where students are ‘coerced’ (in the sense of being disciplined to behave
in ways that they would not otherwise) in a variety of ways. Teachers enforce
certain behavioural requirements, demand attendance in classes that students
dislike, set homework that takes up time on the weekend when students
would prefer to be doing something else and require students to wear a uni-
form or comply with a dress code. When it comes to issues of religion, however,
the coercive powers of the schools are restrained and schools must ensure
that education does not impair the student’s choice to ‘have or adopt’ a religion
or belief of his or her choice. The fact that a school can force the reluctant
maths student to study algebra does not mean that it can require the com-
mitted atheist to take religious instruction.
A related, but distinct, element of the religious freedom guarantee in Article
18 is that States are required to respect the liberty of parents to ensure that
the religious and moral education of children is ‘in conformity with their own
convictions’.10 This is an important element of preventing school indoctrina-
tion that turns children against their parents’ valuesçunfortunately a very
real phenomenon in some States.11 While indoctrination is prohibited, one of
the most complex issues dealt with in the international case-law on this topic
is the extent to which school curricula and values need to adapt themselves
to ensure that parents’ values are conformed with.

10 This element of Article 18 is discussed in Taylor, Freedom of Religion: UN and European Human
Rights Law and Practice (Cambridge: Cambridge University Press, 2005) at 165^75.
11 As authors of a report for the Oslo Coalition on Freedom of Religion or Belief note:
Examples of countries in which the parental right has been violatedçor certainly over-
lookedçwere the formerly communist countries in which parents were legally obligated
to send their children to public schools in which the education was, or at least was sup-
posed to be, based on Marxist ideology. This phenomenon of indoctrination was not
unique to a communist regime. Before the Second World War, the Catholic Church in
some European countries also required that all school subjects in public schools, even
mathematics and the natural sciences, be permeated with Catholicism. Something simi-
lar happened also in post-revolutionary Iran in 1979, where the entire curriculum in
public schools was required to be Islamised.
See Kodelja and Bassler, Religion and Schooling in Open Society: A Framework for Informed
Dialogue (Paper for the Global Meeting on Teaching for Tolerance, Respect and Recognition
in Relation with Religion or Belief, Oslo, 2^5 September 2004), available at: http://folk.-
uio.no/leirvik/OsloCoalition/BasslerKodelja0904.doc [last accessed 1 February 2008].
454 HRLR 8 (2008), 449^473

C. Educational Rights
Finally, it is important to remember that education is itself a right. Children
have a right to education set out in Article 13(1) of International Covenant on
Economic Social and Cultural Rights (ICESCR):
The States Parties to the present Covenant recognize the right of everyone
to education.They agree that education shall be directed to the full develop-
ment of the human personality and the sense of its dignity, and shall
strengthen the respect for human rights and fundamental freedoms. They
further agree that education shall enable all persons to participate effec-
tively in a free society, promote understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups, and further
the activities of the United Nations for the maintenance of peace.
Article 29(1) of the Convention on the Rights of the Child (CROC) sets out a
more detailed set of objectives for education that develop the principles set out
in Article 13(1) of IESECR. Some of the relevant aims outlined in CROC include
that the education of the child shall be directed to:
(b) The development of respect for human rights and fundamental free-
doms, and for the principles enshrined in the Charter of the United
Nations;
(c) The development of respect for the child’s parents, his or her own cul-
tural identity, language and values, for the national values of the country
in which the child is living, the country from which he or she may origi-
nate, and for civilisations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the
spirit of understanding, peace, tolerance, equality of sexes, and friendship
among all peoples, ethnic, national and religious groups and persons of
indigenous origin;
The right to education and its aims must be borne in mind when balancing
the various rights at stake in determining the way in which values are taught
in public schools. Sometimes, a simple solution to some issues of religiously
controversial material seems to be to allow students to be excluded from cer-
tain subjects that they or their parents object to.12 At the extreme, this may
extend to allowing children to be excused from the school system all together
in order to protect their religious values.13 There is, however, a danger in this
approach. Children have a right to education and an education that is directed,

12 See, for example, Education Act 1996 (UK) sections 389 (permitting students, at the request of
parents, to be wholly or partly exempted from religious education) and 405 (permitting stu-
dents, at the request of parents, to be wholly or partly exempted from sex education, except
where the sex education is part of the compulsory ‘National Curriculum’).
13 As occurred when Amish school children were allowed, on religious freedom grounds, to
leave school before the standard leaving age, see Wisconsin v Yoder 406 US 203 (1972).
 Religious Education in Public Schools 455

at least in part, to preparing a child for ‘responsible life in a free society, in the
spirit of understanding, peace, tolerance, equality of the sexes, and friendship
among all peoples’ (CROC Article 29(1)(d)). Too significant a system of exclu-
sions may end up denying the child an education that fulfils those aims or
the aims of developing respect for civilisations other than his or her own and
for human rights more generally.

3. The Potential for Conflict

While international human rights law emphasises the indivisibility and unity
of the human rights regime, it is clear that there is potential for conflict
between rights and between rights holders. This is recognised in the interna-
tional instruments themselves which allow for restrictions on most (though
not all) rights in certain circumstances.
Often, within the debate over school curriculum and religion, both sides
will base their argument on different interpretations of the same right. For
example, religious freedom is invoked by those who wish to see a greater
degree of religiosity in schools and more reference to religious values in the
determination of the curriculum. They argue that religious children and par-
ents are alienated by school curricula that are hostile to their values, unsym-
pathetic to their religion and to a school system that refuses to take into
account views that have a religious basis when a whole range of other belief
systems are taken into account. They see this as discriminatory and a limiting
of the capacity of their children to live out their religion faithfully. On the
other hand, parents, also citing freedom of religion, argue for the exclusion of
religion from the curriculum and religious considerations from education deci-
sion making. They see the inclusion of religious materials and viewpoints as
foisting the religious beliefs of others on their children and fear the breakdown
of secular and non-sectarian education which they consider an essential part
of a secular, liberal society.
While this is one of the most common areas of conflict, it is not the only one
and the potential for conflict between the various stakeholdersçparents, chil-
dren, teachers, the school, educational authorities and the general commu-
nityçshould not be underestimated. The education of children is a subject of
such significance, in which so many groups and individuals have a legitimate
interest, that it has become one of the primary sites for conflict about the rela-
tionship between religion and the State.14

14 For example, in the United States the separation of Church and State has been most strongly
defended in relation to education: see McCarthy, ‘Religion and Education: Whither the
Establishment Clause?’ (2000) 75 Indiana Law Journal 123 at 127^8.
456 HRLR 8 (2008), 449^473

Further the State has its own interests in this debate. As Plesner puts it,
there is an
inherent tension between, on the one hand, the rights of parents to have
the last say about the religious and moral education of their children
and, on the other hand, the state’s obligation to see that all children
receive an education in conformity with the aims spelled out in human
rights instruments.15
The tension becomes particularly acute when parents wish their child’s reli-
gious instruction to be solely within their own tradition and that tradition is
hostile to notions essential to rights such as equality, respect for others and
religious freedom for all.

4. Religion as a Topic of Study

Despite the concerns of some parents, teaching about religion is a legitimate
topic for public schools in liberal democracies. The various international
courts and committees have made it clear that schools need not exclude sub-
ject matter, including religious education, from the curriculum simply because
some parents or students may have religious or philosophical objections to its
inclusion. In a recent challenge to a course in religion and belief conducted
in Norwegian public schools,16 the ECtHR summarised its case-law from
the preceding decades17 interpreting the guarantees of the right to education
in Article 2 of the First Protocol of the European Convention.18 The Court
notes that religious education classes are not a special case: the religion or
belief of parents must be respected ‘throughout the entire State education pro-
gramme. That duty is broad in its extent as it applies not only to the content

15 Plesner, ‘Promoting Tolerance Through Religious Education’, in Lindholm et al (eds),

Facilitating Freedom of Religion or Belief: A Deskbook (Leiden: Martinus Nijhoff Publishers,
2004) 791 at 805.
16 The Court case was a challenge to the modified curriculum developed by Norway after the
United Nations Human Rights Committee found for the applicants in the case discussed
below at n. 49 and accompanying text.
17 Folger
v Norway (2008) 46 EHRR 47 at para. 84. Some of the key earlier judgments of the
ECtHR on this topic include: Kjeldsen, Busk Madsen and Pedersen v Denmark A 23 (1976);
(1979^80) 1 EHRR 711; and Campbell and Cosans v United Kingdom A 48 (1982); (1982) 4
EHRR 293.
18 Article 2 of the First Protocol reads:
No person shall be denied the right to education. In the exercise of any functions which
it assumes in relation to education and teaching, the state shall respect the right of par-
ents to ensure such education and teaching in conformity with their own religious and
philosophical convictions.
 Religious Education in Public Schools 457

of education and the manner of its provision but also to the performance of all
the ‘‘functions’’ assumed by the State’.19
The Court acknowledges the rights of parents with respect to the education
of their children, but stresses that these are only part of the whole of Article
2 of the First Protocol and that the right to education is the key to understand-
ing the provision as a whole.20 In other words, parental rights are closely
linked to the broader right of education.21 The Court recognises that respect
for the rights of parents and the religious freedom of children need to be
balanced against other legitimate interests. This does not mean that minority
interests can simply be subordinated to those of the majority: ‘a balance must
be achieved which ensures the fair and proper treatment of minorities and
avoids any abuse of a dominant position’.22 Parents do not, however, have a
right to have schools created and funded that entirely comply with their educa-
tional or religious philosophy. Nor do parents have a ‘right that their child be
kept ignorant about religion or philosophy in their education’.23
In this complex area, the Court has been prepared to defer to States to some
degree and to acknowledge the importance of not micro-managing the curri-
culum from Strasbourg. In the Norwegian case, it summarised its previous
case-law thus:
(g) [T]he setting and planning of the curriculum fall in principle within
the competence of the Contracting States. This mainly involves questions
of expediency on which it is not for the Court to rule and whose solution
may legitimately vary according to the country and the era . . . In parti-
cular, the second sentence of Article 2 of Protocol No. 1 does not prevent
States from imparting through teaching or education information or
knowledge of a directly or indirectly religious or philosophical kind. It
does not even permit parents to object to the integration of such teaching
or education in the school curriculum, for otherwise all institutionalised
teaching would run the risk of proving impracticable . . .
This conclusion supports the inclusion and even integration of religious knowl-
edge into public school curricula. It is correct for at least three reasons.24
The first is that, particularly as classrooms become increasingly religiously
pluralistic, attempting to create a curriculum that fully respects all religions

19 This does not commit the school to respecting any passing whim or preference of parents, but
only those ‘views that attain a certain level of cogency, seriousness, cohesion and importance’:
see Folger
v Norway, ibid. at para. 84(c).
20 Ibid. at para. 84(d).
21 Ibid. at para. 84(e).
22 Ibid. at para. 84(f).
23 Ibid. at para. 89.
24 For other discussions of reasons to include religiously controversial material into the curricu-
lum see Clarke, ‘Religion, Public Education and the Charter: Where Do We Go Now?’, (2005)
40 McGill Journal of Education 351.
458 HRLR 8 (2008), 449^473

and philosophies raises insuperable difficulties. As the European Court notes,

approaches that allowed parents to veto any teaching that they objected to
run the risk of making institutionalised forms of teaching impracticable. In
the area of teaching about religion, for example, some parents may (for pro-
found and well-thought out reasons) be deeply opposed to any classes that
teach religion in any form. Other parents may believe (also after long reflection
and serious thought) that their children will be inadequately educated if they
do not understand at least the basic beliefs held by the various religions pre-
sent in the society in which they live. Still other parents may believe (also for
serious and deeply felt reasons) that religious education is an essential element
of any education that will equip a student to live a moral life, but that only
the religion that they believe to be true should be taught to their children.25
In these circumstances, there is no solution that easily accommodates every
parent’s seriously held beliefsçto exclude religion from the curriculum is as
offensive to one set of parents as including it is to another set. So schools or
educational authorities have to be given some discretion to develop workable
solutions for particular countries or school areas. Certain groups of parents
cannot be allowed simply to exercise a veto over what the children of other
parents are entitled to learn.
The second reason that it would be inappropriate to exclude religious mate-
rial is that one of the objectives of education, as it is envisaged in the interna-
tional human rights treaties, is said to be the
preparation of the child for responsible life in a free society, in the spirit of
understanding, peace, tolerance, equality of sexes, and friendship
among all peoples, ethnic, national and religious groups and persons of
indigenous origin.26
This requires some level of understanding and education about different ethnic
and religious groups in order to counteract the biases, bigotry and misinforma-
tion that can easily flourish in relation to religious minorities in particular. If
schools were not permitted to explore different religious traditions of the
world, then children would likely develop their conception of people of other
religions from far less reliable sources.27 It is, presumably, at least in part for
this reason that most European countries have some kind of religious

25 For an example of how this tension arose in Germany, see Plesner, supra n. 15 at 806. As this
case study demonstrates, what might be conceived of as ‘neutral’ education from one perspec-
tive, can be seen as indoctrination in secular humanism from another perspective.
26 Article 29(1), CROC.
27 The final document of the Madrid Conference speaks, in para. 11, of the importance of helping
children to deal with media, including the internet, in a critical and informed manner
because of the extent to which religious bigotry and stereotypes flourish in these media. See
Final Document of the International Consultative Conference on School Education in
Relation with Freedom of Religion or Belief, Tolerance and Non-Discrimination (Madrid,
23^25 November 2001), available at: http://www.unhchr.ch/html/menu2/7/b/cfedu-home.
html [last accessed 26 May 2008].
 Religious Education in Public Schools 459

education subject in their curriculum.28 A rapporteur’s summary of a meeting

of the Council of Europe’s dialogue on religion in education summarised this
concern by arguing:
Why is knowledge so important? Of two obvious reasons, it was said: We
have to know the other in order to fully understand and respect the
other. (And I think that the concept of respect was the one that was
repeated most frequently in the groups when the aims of intercultural
education was discussed. The respect for the dignity of every individual,
the respect for the diversity of convictions, cultures and religions.) By
knowing the other, we more easily respect the other, making him a real
human being like myself within our common sphere of morality. The
second reason is that we can only know ourselves by knowing the other,
and we can only know the other by knowing ourselves.29
The final reason to permit schools to integrate religious material into the
curriculum is that children have a right to an education that will prepare
them to live in societies that are increasingly complex.30 The exclusion of reli-
gion (out of respect for the beliefs of parents) can undermine the rights of chil-
dren to an education that will give them the knowledge and insights to
understand their own societies and the role that religion plays in the world
today. The Council of Europe symposium noted that:
It was stated by many that without knowing anything about religions, it
would be extremely difficult (to put it the least) to understand and enjoy
most of the art that has been made ^ and is made today. There are so
many references, direct and indirect, to the holy scriptures and religious
traditions that not knowing these would be a kind of cultural illiteracy.31
Religion has been integral to culture, history and politics in most parts of the
world for a long time. Students who do not have a basic ‘religious literacy’ will

28 Plesner, supra n. 15 at 801.

29 Eidsv
g (General Rapporteur), ‘Synthesis of Discussions in the Group Sessions at the Council
of Europe’s Conference on ‘‘The Religious Dimension of Intercultural Education’’, Oslo,
Norway, 6^8 June 2004’, Paper for the Global Meeting on Teaching for Tolerance, Respect
and Recognition in Relation with Religion or Belief, Oslo, 2^5 September 2004, available
at: http://folk.uio.no/leirvik/OsloCoalition/IngeEidsvaag0904.htm [last accessed 1 February
2008].
30 In societies where religion plays an important part in public life, it is necessary for all stu-
dents to understand (though not to adopt) religious ideas in order to fully participate in that
society. As Jay Wexler has argued in the context of the United States, ‘schools should teach
about religion so that students can make fully informed decisions about laws and other gov-
ernment actions affecting religious belief and practice and so they can understand the
myriad ways that religious beliefs affect the way that many Americans think and talk about
issues of public importance, including law, in the clothed public square’. See Wexler,
‘Preparing for the Clothed Public Square: Teaching About Religion, Civic Education, and the
Constitution’, (2002) 43 William & Mary Law Review 1159 at 1170.
31 Supra n. 28.
460 HRLR 8 (2008), 449^473

struggle to understand all these subjects.32 They will also struggle to understand
much that is essential to current political debate. As religion becomes a
more potent factor in national and international politics, it becomes more
difficult to argue that schools should not prepare children to understand
religion.33

5. Different Approaches to Teaching Religion

Even once it is accepted that there are good reasons to include material about
religion in the curriculum, there remain more complex questions about how
this should be done. In late 2007, the Office for Democratic Institutions and
Human Rights Advisory Council of Experts on Freedom of Religion or Belief
produced the Toledo Guiding Principles on Teaching About Religions and Beliefs in
Public Schools (Toledo Guidelines).34 They provide guidance as to how religion
might be taught in public schools, including how to prepare curricula, develop
appropriate teacher education and ensure respect for internationally protected
rights. The Toledo Guidelines only deal briefly with the reasons for teaching
about religions in public schools35 and merely state that the guidelines are for
States that chose to teach about religions (compared, for example, to instruc-
tion in a particular religion) without drawing any conclusion about which
approach is more appropriate.36 A more robust approach is, however, possible.
In this section, I defend the approach of the Toledo Guidelines to the type of
religious education that best fits with respect for human rights principles.

32 Even when disallowing a Bible reading class in a public school, the United States Supreme
Court in School District of Abingdon Township v Schempp 374 US 203 (1963) at 225, noted that
it might well be said that ‘one’s education is not complete without a study of comparative reli-
gion or the history of religion and its relationship to the advancement of civilization.
It certainly may be said that the Bible is worthy of study for its literacy and historical
qualities’.
33 Kaiser notes that the events of September 11 raised many questions from students that
teachers in the United States felt they had been ill-prepared to deal with: see Kaiser, ‘Jesus
Heard the Word of God, but Mohammed Had Convulsions: How Religion Clause Principles
Should be Applied to Religion in the Public School Social Studies Curriculum’, (2003) 32
Journal of Law and Education 321 at 324.
34 The Office for Democratic Institutions and Human Rights (ODIHR) is a body of the
Organisation for Security and Co-operation in Europe, a regional security organisation con-
sisting of Member States from Europe, North American and Central Asia. One of the key activ-
ities of the ODIHR is a programme on tolerance and non-discrimination. The Advisory
Council of Experts on Freedom of Religion or Belief is made up of academic experts, religious
leaders and representatives of various non-governmental and inter-governmental agencies.
35 ODIHR Advisory Council of Experts on Freedom of Religion or Belief, Toledo Guiding
Principles on Teaching About Religions and Beliefs in Public Schools (OSCE, 2007) (Toledo
Guidelines) at 19.
36 Ibid. at 20.
 Religious Education in Public Schools 461

There are a number of possible approaches to whether religion should be

taught about or taught in a public school.37 Outlined here are six broad
approaches (compared to the broader division adopted by the Toledo
Guidelines between religious instruction and religious education).38
(1) Strict secularism: there is no discussion of religion at all in the classroom.39
(2) Incidental religious education: religion is taught about only to the extent that
it is necessary to understand other subjects (for example, the role of
religion in particular wars or religious imagery in certain poems).
(3) Plural religious education: students learn about the basic practices, beliefs,
rituals etc of a variety of religions. They are presented with information
about these religious traditions but are not taught that any of them are
(un)true. The instruction may also extend to philosophies and beliefs of
a non-religious nature.
(4) Sectarian religious instruction: students are broken up into groups (normally
sectarian-based) and given instruction in their religion. An alternative
class (perhaps in philosophy or secular beliefs) is given to students who do
not wish to have religious instruction.
(5) Unitary religious education: there are classes about the dominant religion of
the State. The classes present information about the religion, but teachers
do not claim that the religion is true. However, the classes deal either exclu-
sively or predominantly with a single religion.
(6) Religious or ideological instruction: there is only one class in religion avail-
able and that is religious instruction in the dominant religion. The
religion is taught as true and children may be prepared for participa-
tion in religious rituals. Exemptions may be granted to students
whose parents object to these classes in some circumstances. A similar
approach to indoctrination on religious viewpoints can be seen in curri-
cula that teach the truth of atheism or other philosophical positions that
reject religion.
The case-law of the international human rights bodies does not have any-
thing to say about either of the first two options, which either exclude or

37 I limit my discussion in this article to the position of non-sectarian State-funded public

schools. While some of this discussion is also relevant in denominational and/or privately
funded schools, these schools raise other complications which are beyond the scope of this
article.
38 In a number of the European studies dealing with this issue, the approaches have been
divided into two broad categories: a ‘confessional’ and ‘non-confessional’ approach. Such
broad categorisation, however, fails to acknowledge some important differences, see Plesner,
supra n. 15 at 797^9.
39 This option is probably more theoretical than realçit is very difficult to imagine schooling
that made absolutely no reference to either religion or a comprehensive alternative to religion
(such as atheism). Kodelja and Bassler, supra n. 11. A curriculum that took such an approach
would be unable to properly examine the causes of many European wars, to explore the
meaning of great works of art, music and literature, or engage with current debates over
issues such as terrorism or migration.
462 HRLR 8 (2008), 449^473

minimise the role of religion in the curriculum. It has not tended to be the
exclusion of such topics from the curriculum that has caused disputes in inter-
national fora, but rather the ways in which religion can be included appropri-
ately in the curriculum.40 Several recent human rights cases have
highlighted the complexities in developing and applying appropriate principles
by which to judge the human rights compliance of particular approaches to
religious education. Two of these cases involved Norway; one before the
United Nations Human Rights Committee (UNHRC) and one before the
ECtHR.41 Both involved the attempt by Norway to move from a sectarian
approach to develop a single class in comparative religion and philosophy that
all students could study.42 The course, however, focused on the established
Norwegian Lutheran Church and created obstacles for parents who sought
exemptions for their children from participation in some parts of the course.
Another recent case involved Turkey’s sectarian religious education and was
heard in the ECtHR.43 While Jews and Christians were automatically exempted
from instruction in Islam, it was compulsory for all Muslim children even
though it focused primarily on Sunni understandings of Islam and not other
forms of Muslim belief that were also common in Turkey. In all three cases,
the relevant States had tried to make provision for those whose views were
not of the mainstream, but in each case the balance that they struck was chal-
lenged. In determining them, both the UNHRC and the ECtHR was able to
draw on a series of other cases in this area to extract some general principles
applicable to public school cases. These principles are discussed here.

6. Key Principles Contained in the Case-law

A. The Teaching of Religion must be ‘Objective’,‘Neutral’,‘Critical’
and ‘Pluralistic’
While allowing religiously controversial material to be covered, both the UNHRC
and ECtHR require that it be taught in an‘objective and neutral manner’ with the
ECtHR adding that such teaching should be ‘critical and pluralistic’.44 The
Committee on Economic, Social and Cultural Rights has said that religion must
be taught in an‘unbiased and objective way, respectful of the freedoms of opinion,

40 As over half the countries in the world teach religious education in some form, for an average
of 8% of the available curriculum time, this issue is a key one. For a summary of the statistics
in this area, see Rivard and Amadio, ‘Teaching Time Allocated to Religious Education in
Official Timetables’, (2003) 33 Prospects 211.
41 Leirvg et al. v Norway (1155/2003), CCPR/C/82/D/1155/2003 (2004); and Folger
v Norway,
supra n. 18, respectively.
42 Folger
v Norway, ibid.
43 Hasan and Eylem Zengin v Turkey (2008) 46 EHRR 44.
44 For a discussion of the more complex constitutional limitations on teaching religion in the
United States, see Wexler, supra n. 30 at part IV.
 Religious Education in Public Schools 463

conscience and expression’.45 In the Norwegian cases that came before both the
UNHRC and the ECtHR, it was agreed that the fact that one religion was dealt
with in more detail and depth than others was not in itself sufficient to say that
teaching was not objective and neutral.46 However, it seems that in both cases
the predominance of teaching about the established Church of Norway raised
the level of scrutiny to which the rest of the legislative framework was subject.
While there has been a widespread acceptance of some requirement of
objectivity and neutrality in teaching about religion, there has been far less
analysis of what this means in practice. There are two levels of difficulty with
the principle. The first, philosophical, problem arises from the acceptance of
the idea that there is some ‘objective and neutral’ position from which religion
can be taught. For some religious parents, teaching about all religions as if
they were equally true, for example, is teaching a falsehood (and a dangerous
falsehood at that). Others will see such an approach as promoting secularism,
which they conceive of as hostile to a religious viewpoint. This difficulty is
a significant one and cannot be addressed in the scope of this article. It is
notable, however, that the international courts and tribunals have simply
assumed that objectivity and neutrality in relation to matters on which there
are fundamental disagreements is both possible and desirable.
The second problem is less profound, but still raises significant practical dif-
ficulties. Even assuming that we accept that ‘objectivity and neutrality’ is the
appropriate principle by which to judge curricula, how can those two values
be judged? There are some fairly clear cases. If a school engages in religious
instruction, that is teaching that a particular religion is true and preparing
children for participation in that religion, it is not teaching in an objective and
neutral way. In the same way, instructing children that all religions are
untrue or superstitious or indoctrinating them with atheist beliefs would also
fail the objective and neutral test. Such classes (described above as ‘religious
or ideological instruction’) would breach international human rights law,
unless there was an exemption from classes given to children and parents
who objected to these courses. Most sectarian religious instruction would, for
the same reason, fail the test of objectivity and neutrality, but would often
be saved by the fact that children are only given religious instruction in the
religion that they or their parents chose to be instructed in.
That leaves two of the options outlined above for teaching about religion to
a whole class: unitary religious education and plural religious education. In
both of these forms of education, but particularly for unitary religious educa-
tion, the dividing line between education about a religion and religious
instruction is not always the bright, clear line that international human

45 Committee on the Rights of the Child, General Comment No. 13: The right to education,
8 December 1999, E/C.12/1999/10; 7 IHRR 303 (2000) at para. 28.
46 Folger
v Norway, supra n. 18 at para. 89.
464 HRLR 8 (2008), 449^473

rights bodies assume. Even a legislative framework or a school curriculum that

has the avowed purpose of objectivity and neutrality can be subverted by class-
room teaching. This is a danger of allowing for sole or predominant focus on
the dominant religion (as the international human rights bodies have). Where
there is a religious majority in a State to which most students, parents and tea-
chers belong and where that religion dominates the set curriculum it is quite
possible for even well-meaning teachers to begin to blur the line between reli-
gious instruction and education about religion.47 Teachers may well have
deeper knowledge about, and greater enthusiasm for, teaching their own reli-
gion than other religions or beliefs and a teacher with a deep commitment to
a religious position may find it personally challenging to teach it in a neutral
and objective manner.48 The ECtHR has warned schools that they have to be
alert to circumstances in which teachers might use their influence over stu-
dents as an occasion for improper proselytism, but have gone no further than
that. The issue of the approach of teachers is a delicate one where the need to
protect the right of teachers to their own freedom of expression and religion
needs to be balanced against the potential for coercion or indoctrination in
religious matters.49
Even plural religious education raises difficulties. A class in religion may
cover more than one religion and claim that its aim is to educate students
about a variety of religions or beliefs, but may still be said to contravene the
objective and neutral requirement. In this context, the decision of the UNHRC
in the case against Norway gives some indication of educational approaches
that might be problematic. The UNHRC made the following points in holding
against Norway:
In the object clause [of the Act] in question it is prescribed that the object
of primary and lower secondary education shall be ‘‘in agreement and
cooperation with the home, to help to give pupils a Christian and moral
upbringing’’. Some of the travaux pre¤paratoires of the Act referred to
above make it clear that the subject gives priority to tenets of
Christianity over other religions and philosophies of life.50
The UNHRC thought that an emphasis on Christianity was understandable
in a predominantly Christian country, but the preference given to Christian
values and the entanglement of sectarian religious instruction with education

47 Kaiser, supra n. 33 at 334^5.

48 As one group of scholars who have been involved in attempts to move towards greater inter-
religious tolerance and respect have noted, ‘[i]ntrinsic in religions and other comprehensive
normative traditions is the temptation of excluding outsiders from equal public status and
from equal respect’. See Eidsv
g et al., ‘The Emergence of Interfaith Dialogue: The Norwegian
Experience’, in Lindholm et al. (eds), Facilitating Freedom of Religion or Belief: A Deskbook
(Leiden: Martinus Nijhoff, 2004) 777 at 789.
49 Taylor, supra n. 10 at 171^2.
50 Leirvg et al v Norway, supra n. 41at para. 14.3.
 Religious Education in Public Schools 465

about all religions rendered it problematic. Further, instruction in Christianity

was required by the law to be ‘thorough’ whereas only familiarity was required
with other religions. In line with this, much more detail was given about the
types of teaching required for Christianity than other religions.51
Combined with these factors that suggested that the course had veered too
close to instruction in Christianity with a little comparative religion appended,
there was another issue that does raise difficulties with teaching of religion
more generally. Students in Norway were not only instructed about religion,
they also engaged in activities to do with religion, for example singing religious
songs, participating in plays of religious scenes and attending religious celebra-
tions and ceremonies. It was from these parts of the courseçthat the
Norwegian government recognised could be perceived as forced religious prac-
ticesçthat students were permitted an exemption.52 Similarly, in the Turkish
case of Zengin v Turkey, students were required to memorise certain sura from
the Koran and were examined on their knowledge of themça practice that
begins to look more like religious instruction than education.53
While the ECtHR did not deal with it in any detail, this issue is one that
potentially renders the assumption that religion can be taught in a neutral
and objective manner problematic. Modern educational theory is based
around models of teaching that tend to be active, participatory and creative.
Neutral and objective education can perhaps most easily be imagined being
taught from a carefully prepared textbook which gives equal space and detail
to all the major world religions. Perhaps some suitable videos or materials can
also be introduced. Once greater participation by children is required, the
issues become more complicated.
Children, particularly in the older age groups, can be encouraged to engage
with the material ‘critically’ to use the terminology of the ECtHR. But this in
itself is not without danger. Putting children in a position where they are
asked to reflect in a critical manner on their own religion may cause real ten-
sions between the values taught at home and in the school. Reflecting critically
on the religion of others could well be a source of tension and conflict in the
classroom. Such critical engagements can be most worthwhile, but they are
not without potential cost and require very high-level skills from teachers to
be handled well.54

51 Similarly, teaching in Turkey for Muslims dealt primarily with Islam (and Sunni understand-
ings of Islam, in particular) with only relatively little space given to other religions or other
forms of Islam. Indeed, some of the instructions for the subject veered close to religious
instruction in requiring students to learn that ‘far from being a myth, Islam is a rational
and universal religion’: Zengin v Turkey, supra n. 43.
52 Folger
v Norway, supra n. 18 at para. 15.
53 Zengin v Turkey, supra n. 43 at para. 62.
54 Another, related issue is whether such classes should be taught in an ‘objective’ way by ordi-
nary teachers or from a religious perspective by a variety of religious leaders. For a good over-
view of the various viewpoints, see Griffin, Law and Religion: Cases and Materials (New York:
Foundation Press, 2007) at 541^50.
466 HRLR 8 (2008), 449^473

For younger children, however, the types of abstract thinking and critical
reflection that may be suitable at a higher educational level are not always
achievable.55 If children are being taught about another culture, for example,
they would often be encouraged to sing songs from that culture, perhaps
dress up in traditional clothing, act out scenes of daily life or draw pictures of
important historical figures from that culture.56 Once the subject matter is reli-
gion, however, all of these otherwise perfectly good teaching methods become
more problematic. Jewish parents may object to their children taking part in a
nativity play; Christian parents to their children visiting a mosque; and atheist
parents to their children singing religious songs. These activitiesçwhich
some parents may welcomeçmay be perceived by others as alienating to chil-
dren who are not adherents to the religion being taught or, even worse, as
forms of indoctrination or religious coercion. The UNHRC noted the validity of
taking into account parental or children’s perceptions of the way in which a
course was taught when it held that one reason the Norwegian religious sub-
ject was not objective and neutral when it noted that: ‘the research results
invoked by the authors, and from their personal experience that the subject
has elements that are not perceived by them as being imparted in a neutral
and objective way’.57
These issues do create difficulty in developing an appropriate curriculum to
teach about religion while not indoctrinating or supporting particularly reli-
gious viewpoints. However, as Paul Clarke argues, there is controversy in
many parts of the curricula, and to shy away from topics in classrooms
simply because they are controversial would be ‘the death knell of all serious
teaching’.58 While we should not have unrealistic expectations of teachers, it
is better to give teachers proper training, well-prepared materials and other
resources, than to simply exclude difficult religious material from the
curriculum.

B. Exemptions for Parents and Students who Object

One of the ways in which some States and the international tribunals try to cut
through the difficulties with teaching religious materials discussed above is to
require that exemptions to such classes be offered where the material might
not be taught in an objective or neutral manner or even where there is a per-
ception by some parents that the classes are not objective and neutral. The
international human rights bodies have perhaps been a little too willing to

55 Specht, ‘Younger Students, Different Rights? Examining the Standard for Student-Initiated
Religious Free Speech in Elementary Schools’, (2005^2006) 91 Cornell Law Review 1313.
56 Altman v Bedford Central School District 245 F.3d 49 (2d Cir. 2001).
57 Leirvg v Norway, supra n. 41at para. 14.3 (emphasis added). See also Folgero v Norway, supra
n. 18 at para. 45.
58 Clarke, supra n. 24 at 369.
 Religious Education in Public Schools 467

assume that such exemptions render even religious instruction classes unpro-
blematic and, until recently, have not been inclined to question how they
work in practice. The Norway cases, however, led both the UNHRC and the
ECtHR to more detailed consideration of the circumstances in which exemp-
tions are an acceptable way of dealing with controversial religious education.
The Norwegian case in the UNHRC raised particularly complex issues
because it only allowed for partial exemptions for the religion and belief classes
which permitted children to be exempted from activities that might have been
seen to require religious participation. In order to benefit from the exemptions,
the Act set out that:
on the basis of written notification from parents, pupils shall be
exempted from attending those parts of the teaching at the individual
school that they, on the basis of their own religion or philosophy of life,
perceive as being the practice of another religion or adherence to another
philosophy of life.59
The UNHRC criticised this system for the following reasons:
The Committee considers, however, that even in the abstract, the present
system of partial exemption imposes a considerable burden on persons
in the position of the authors, insofar as it requires them to acquaint
themselves with those aspects of the subject which are clearly of a reli-
gious nature, as well as with other aspects, with a view to determining
which of the other aspects they may feel a need to seek ^ and justify ^
exemption from. Nor would it be implausible to expect that such persons
would be deterred from exercising that right, insofar as a regime of par-
tial exemption could create problems for children which are different
from those that may be present in a total exemption scheme. Indeed as
the experience of the authors demonstrates, the system of exemptions
does not currently protect the liberty of parents to ensure that the reli-
gious and moral education of their children is in conformity with their
own convictions. In this respect, the Committee notes that the CKREE
subject combines education on religious knowledge with practising a par-
ticular religious belief, e.g. learning by heart of prayers, singing religious
hymns or attendance at religious services. While it is true that in these
cases parents may claim exemption from these activities by ticking
a box on a form, the CKREE scheme does not ensure that education of
religious knowledge and religious practice are separated in a way that
makes the exemption scheme practicable.60 (citations omitted)

59 Norwegian Education Act 1998 sections 2^4, as quoted in Leirvg v Norway, supra n. 48 at
para. 14.4.
60 Leirvg v Norway, ibid. at para. 14.6.
468 HRLR 8 (2008), 449^473

The Committee also noted the ‘loyalty conflicts’ experienced by children

which were exacerbated by the partial exemption scheme and the lack of
clarity about what constituted reasons for exemptions.61 In dealing with a
modified version of the same scheme, the ECtHR noted the potential problems
which arise when requiring a parent to justify their child’s non-participation
in certain classes. Members of religious minorities might feel intimidated into
not providing such information and requiring parents to explain their religious
beliefs (the adequacy of which would be judged by the school) could in itself
be a breach of religious freedom.62
An even more problematic exemption scheme was criticised by the ECtHR
in Zengin v Turkey where the Turkish government gave automatic exemptions
for Christian and Jewish children from the religious education course, but did
not permit exemptions for Muslims (whether Sunni, Shia or other).63
This created two difficulties. The first is that parents and children were
expected to disclose their religion to school authorities so that they were
either automatically enrolled in religious instruction or not enrolled in such
instruction. The Court was critical of this approach as requiring the disclosure
of the child’s religion to State authoritiesçsomething that is prohibited by the
European Convention on Human Rights.64 Second, the fact that there were no
exemptions available for Muslims, even those who were not Sunnis and
objected to the emphasis on Sunni thought and beliefs in the curriculum, was
held by the ECtHR to be impermissible.65 The argument of the government
that this was necessary to prevent fundamentalism was dismissed by the
ECtHR with little by way of reasoning.66
While the rather complicated partial exemption scheme in Norway was held
to be inadequate by both the UNHRC and the ECtHR, and the lack of an
exemption scheme for Muslims in Turkey was held to be in breach by the
ECtHR, these bodies have not engaged in particularly detailed scrutiny of
more comprehensive exemption schemes in the past. The provision of exemp-
tions appears to have rendered even religious instruction unproblematic, with
the international human rights bodies failing to engage in issues such as the
alienating effect of exemptions on students who claim them (even when stu-
dents were expected to wait in the corridor during the classes) or on the poten-
tial for discrimination where students did not take religious instruction
courses in a country where discrimination against religious minorities was

61 Ibid. at para. 14.7.

62 Folger
v Norway, supra n. 18 at para. 98.
63 Zengin v Turkey, supra n. 43 at paras 18^9 and 74.
64 Ibid. at paras 73 and 76.
65 Ibid. at paras 74^6.
66 Ibid. at paras 44 and 59^60.
 Religious Education in Public Schools 469

a significant issue.67 The Norway cases signal a possible shift from the rather
formalistic approach that had previously been taken to exemptions with
greater consideration of the practical and emotional burden that they can
place on students and parents.68
As discussed earlier, however, it is important for States and schools not to
become too reliant on exemptions as a way of circumnavigating controversial
areas of curriculum. Exemptions work best when they can be for a whole sub-
ject and when a meaningful alternative class is available to substitute for the
one that is being missed. The ECtHR has, however, accepted that religiously
controversial material can be integrated into the curriculum in areas in
which exemptions become much more complicated and often will be inap-
propriate. The particular case69 in which this question arose dealt with
sex education, but the principle has been accepted as having more general
application and makes sense given the moves in many States toward more inte-
grated and holistic curricula.70 The areas that have the potential to raise reli-
gious controversyçeverything from biology71 to sport72 to literature73 to sex
education74çare extensive. The possibility of producing a wholly non-
controversial curriculum that is anything other than anodyne and education-
ally inadequate is remote. In those circumstances, schools need to find ways
of dealing with controversial topics, including religion, in ways that are sen-
sitive to the equality of all students, their right to education and their claims
to religious freedom and non-discrimination.75 Sometimes exemptions will be

67 Taylor, supra n. 10 at 176^7; and Evans, Religious Freedom under the European Convention on
Human Rights (Oxford: Oxford University Press, 2001) at 94^6.
68 A useful approach to setting up opt-out schemes is set out in the Toledo Guidelines, supra
n. 35 at 16.
69 Pedersen v Denmark, supra n. 18.
70 There may be good social and pedagogical reasons for the integration of even controversial
material, see Lewis and Knijn, ‘Sex Education Materials in the Netherlands and in England
and Wales: A Comparison of Content, Use and Teaching Practice’, (2003) 29 Oxford Review of
Education 113.
71 Should evolution be taught in schools? Should religious alternatives or objections to evolution
be taught? If so, which ones?
72 Should female and male students be taught together or be required to engage in sporting
activity that requires physical contact between men and women? Should students be allowed
to wear religious dress that makes it more difficult or impossible for them to fully participate
in sports classes?
73 Should books be set for study (or even available in libraries) if they deal with topics such as
homosexuality, drug taking, religiously inspired terrorism and so on etc?
74 Should sex education be taught at all in schools? If it is, should it deal with topics such as con-
traception, pre-marital sex and homosexuality?
75 For one approach to two such religiously/morally controversial questions (sex education and
origins of life), see Goldbard ‘Let’s Talk About Sex and Religion: A Case for Inclusive Public
School Curricula in Sex and Origins of Life Education’ (forthcoming publication in 28
Journal of Juvenile Law, available at: http://ssrn.com/abstract¼986223 [last accessed
1 February 2008]).
470 HRLR 8 (2008), 449^473

part of such an approach, but it is not the answer to all problematic

questions.76
Further, too extensive a series of exemptions or an educational approach
described above as ‘sectarian’ (i.e. an approach where each student learns
only about their own religion or belief in classes separated from those of
children with other religions or beliefs) can lead to what the former UN
Special Rapporteur on Freedom of Religion or Belief has described as a
‘ghetto’ approach. In supporting a more comprehensive religious education
programme in which all students can participate, he emphasised the poten-
tial for such a subject to foster ‘understanding of the others, of cultural and
moral differences, and contribute to the creation of a culture of peace, human
rights and tolerance’.77

7. The Toledo Guidelines: A Partial Way Forward

Given the level of generality of the principles developed by the international
human rights bodies, States have increasingly recognised the need to work on
ways of taking more concrete steps towards developing appropriate, plural reli-
gious education. In this context, the Toledo Guidelines provide a welcome
development. They are sufficiently detailed to be useful, and sufficiently gen-
eral to recognise the great variety of historical, cultural, political and educa-
tional systems to which they might apply. The guidelines take into account
not only the substance of what is taught, but also emphasise the importance
of appropriate teaching, training and pedagogical standards, and also the
vital role of consultation and community involvement in decision making.78
The approach taken by the guidelines to the substance emphasises the impor-
tance of teaching that is ‘fair, accurate, and based on sound scholarship’ (prin-
ciple 1) and that religious freedom and respect for human rights should also
be taught and practiced (principles 1 and 2). They acknowledge the co-respon-
sibilities of schools and parents in teaching about religion and touch on the

76 An example of where simply excluding the controversial is an inadequate response to a

debate between different groups in a school community is the Canadian ‘three books’ contro-
versy where three books depicting families parented by same sex couples were excluded
from the approved family education curriculum. While this decision pleased parents who
thought that such material was inappropriate (often for religious reasons) it seemed to other
parents that its exclusion represented a domination of one religious view and an encourage-
ment of discrimination and intolerance. Parents who wished to see the materials incorpo-
rated argued that ‘dissonance is neither avoidable nor noxious’ but something that is ‘part of
living in a diverse society’: cited in Collins, ‘Culture, Religion and Curriculum: Lessons from
the ‘‘Three Books’’ Controversy in Surrey, BC’, (2006) 50 The Canadian Geographer 342 at 353.
77 Amor (Special Rapporteur), ‘Introductory Note’, International Consultative Conference on
School Education in Relation with Freedom of Religion and Belief, Tolerance and Non-discri-
mination, Madrid, 23^25 November 2002, available at: http://www.unhchr.ch/html/menu2/
7/b/cnfedu-int.htm [last accessed 1 February 2008].
78 Toledo Guidelines, supra n. 35 at 16.
 Religious Education in Public Schools 471

possibility for tension between the two [although they do not give much gui-
dance about their resolution (principle 3)].
The Toledo Guidelines also underline the importance of education that is
‘inclusive, fair and respectful’ to both religious and non-religious views and
suggest that ‘care should be taken to avoid inaccurate or prejudicial material,
particularly when this reinforces negative stereotypes’ (principle 7). While
this is unobjectionable in its terms, the emphasis on respect and the avoidance
of prejudice and stereotypes does raise the danger that teaching about reli-
gions may become too bland or even celebratory, thereby ignoring the ways in
which religions have undermined human rights, betrayed their own values or
caused human sufferings in both historical and modern contexts or reproduc-
ing in uncritical fashion some of the discriminatory teachings of religions.79
In the desire to avoid negative stereotypes and offence, the views of those
who are more critical of religion can be lost.
Moreover, the desire to be ‘fair and accurate’ can lead to curricula that are
dense with facts but that do not leave students space to engage with and be
challenged by the material presented.80 In a useful analysis of some of the
potential pitfalls of education about religion, Professor Robert Jackson argues
that the best religious education encourages the ‘engagement of pupils with
their own beliefs and values in relation to understanding others’.81
The danger, as he sees it, with much religious education in practice is that it
becomes loaded with so much information (driven by the focus of religious
leaders) that it allows inadequate time for ‘pupils to initiate ideas, to reflect, to
interact with ideas and to engage in critical discussion’. This comment reiter-
ates the importance of involving teachers and educational experts from the
earliest stages in developing any religious education curriculum to ensure
that the limits and possibilities of classroom teaching are not ignored by a
well meaning inter-faith group seeking to create comprehensive content on
comparative religion.
The Toledo Guidelines, of necessity for guidelines developed in the context of
an inter-governmental body, are general and avoid some controversial issues
such as which approach to religious education in schools is most appropriate.
As this article has argued, the option of education about religion that is inclu-
sive and pluralistic is most compliant with States’ human rights obligations.
This is the option explored (and hence implicitly supported) in the Toledo
Guidelines, but never explicitly adopted or defended. The Guidelines therefore
provide a very useful set of criteria against which States seeking to assess the

79 Clarke, supra n. 24 at 355^7, and 364.

80 Jackson, ‘How School Education in Religion Can Facilitate the Promotion of Tolerance and
Non-Discrimination with Regard to Freedom of Religion or Belief’, Report from the
Preparatory Seminar on Teaching for Tolerance and Freedom of Religion or Belief, Oslo, 7^9
December 2002, available at: http://folk.uio.no/leirvik/OsloCoalition/RobertJackson.htm [last
accessed 1 February 2008].
81 Ibid.
472 HRLR 8 (2008), 449^473

way in which teaching about religion in public schools complies with human
rights obligations can test themselves. They build in no small part on the inter-
national human rights case law discussed, but in many ways approach
the issues involved with more sophistication than the human rights bodies
and may prove more useful for many States. The Toledo Guidelines are but
one part of a complex, ongoing discussion in international and domestic
courts, governments and the academy about the best approach to these
issues; much remains to be done. For now, however, they make a valuable con-
tribution to a complex area.

8. Conclusion
Quite some thought, in many countries, has been put into the question of how
to develop a rights-respecting approach to religious education that allows stu-
dents to engage fully with other religions and beliefs while still being mindful
of the religious freedom of both students and parents.82 This is by no means
easy. It is a task that requires the combined skills of teachers and educational
administrators, human rights experts, religious leaders, representatives of
secular belief systems and governments. Creating a sophisticated, education-
ally sound and religiously respectful model of education is a time consuming
and complex process. It requires States and educators to engage in careful con-
sultation with parents and other stakeholders (including children themselves,
whose views are sometimes ignored in these debates.)83
International human rights treaties and case-law are certainly a useful
reference point in the debate over the principles that should inform school
approaches to religious education. They remind us that education is a right
that no child should be denied and that education should be aimed at creating
children who can live together and respect human rights. They remind us
that public schools are not the place for indoctrination in religion or belief,
even if they are places where religion or belief may be legitimately explored.
They remind us that all children have a right to education without discrimina-
tion on bases such as their religious belief and that care needs to be taken to

82 Extensive material on this topic is available at the Oslo Coalition on Freedom of Religion or
Belief Website, available at: http://www.oslocoalition.org/t4t.php [last accessed 1 February
2008].
83 For an example of some of the processes engaged in and the values that informed inter-faith
dialogue in Norway, see Eidsv
g et al, supra n. 48 at 784. In this dialogue, the values of tolera-
tion (including disagreements and the limits of toleration), truthfulness and equal dignity, in
assisting in the development of a communal ethic, were relied on to create a meaningful
and challenging engagement. For a ‘stakeholder’ approach to determination the resolution of
religious rights balancing which might be usefully employed in developing a religious educa-
tion curriculum, see Shariff, ‘Balancing Competing Rights: A Stakeholder Model for
Democratic Schools’, (2006) 29 Canadian Journal of Education 746. See also the Toledo
Guidelines, supra n. 35 at 63^5.
 Religious Education in Public Schools 473

ensure that minority religious viewpoints are not ignored or marginalised.84

However, they do not, and cannot provide a detailed prescription for the
way forward in all States. The Toledo Guidelines are another important
development in providing international guidance on both how to develop cur-
ricula on religious education and some issues of substance that need to
be dealt within developing such curricula. They are an important step
forward on what promises to still be a long journey towards making sure
that students can learn about a variety of religions without their other
rights being violated.

84 Plesner, supra n. 15 at 811.