Last week a Muslim student in Berlin called Yunus Mitschele lost the right to pray during school hours. He'd won the right to a quiet prayer room for about 10 minutes a day last fall, in an earlier decision, but an appeals court has overturned that ruling and said a student's right to religious expression was not absolute.
"This is a good day for Berlin schools," Brigitte Burchhardt, headmistress at the Diesterweg Gymnasium in Berlin, told reporters after last Thursday's decision.
The case is new in postwar Germany, which is just starting to struggle with American-style complexities of religious freedom. In America, the courts have fussed over these principles for decades, but in Germany they're still untested, and Mitschele's lawyer may appeal.
The current problem started in 2007 when Yunus M. — as he's called in almost every German report — started kneeling on his jacket in the locker hall, pointed toward Mecca, to pray.
A few friends joined in, but the headmistress ordered them to stop. Yunus' family then found a lawyer and took the Diesterweg Gymnasium to court. All Yunus wanted, they said, was a quiet place to fulfill his Muslim duty of a midday prayer.
In the fall of 2009, a regional Berlin court ruled that the school had to offer Yunus a quiet room to pray in. Teachers were given keys to the room and ordered to open it for Yunus for about 10 minutes during a midday recess, whenever he happened to ask. (In practice, over a six-month period, he's managed to pray in the room about 14 times.)
The Berlin court ruled in 2009 that a "principle of neutrality" reigned in public schools, so no administration could deny a student's right to pray. Last week's reversal by the appeals court rested on neutrality, too: One judge said that if the school had to offer Muslims a quiet place to pray, it would have to make the offer to everyone – and Diesterweg Gymnasium happens to have a pretty diverse population.
"With the multitude of religious denominations," argued the judge, "it would burst the capacities of the school."
The case echoes local stories from around the U.S., including a controversy in 2007 when a San Diego school changed its schedule to give Muslim pupils a special lunch break to accommodate midday prayers. About 100 mostly Somali kids had moved to Carver Elementary School after an Arabic-language charter school failed in the area, so there was a sudden demand for prayer time.
At first, the school had allowed an Arabic class to break for 15 minutes to let the kids pray. But some Christian groups noticed a double standard — understandably — and asked for space and time for their own kids to pray. Brad Dacus, president of the Pacific Justice Institute, argued at the time that Carver's accommodation of Muslim prayer presumed "that Christians are less religious and less inspired to worship and praise the Lord and come together."
In the end, though, it came out that the Arabic teacher may have been leading the 15-minute prayer breaks at Carver, which is a no-no. The principle established in the U.S. Supreme Court — in particular by two cases in 1962 and 1963 — says that kids are free to pray on their own, and a school might accommodate them, but no public school can coerce kids to worship, and government teachers aren't allowed to lead prayers.
So the school, instead, changed its schedule. Brent North, a constitutional lawyer hired by San Diego Unified School District, said Muslim prayers were different from Christian or other prayers because Islam demanded a fixed regimen of five per day.
"The district's legal obligation in response to a request that a prayer must be performed at a particular time," he said, "is to treat that request the same as it would treat a student's request to receive an insulin shot at a particular time."
But a crucial argument in last week's verdict on Yunus M. flies in the face of that assumption. The Berlin appeals court heard from a German expert on Islam, Tilman Nagel, a professor emeritus at the University of Göttingen. He pointed out that Yunus M. and his generation of Muslim students were not the first kids to face a conflict between 1,300-year-old prayer regimen and the bells in a Western school.
He said — and some German Muslims agree — that a Muslim is "in no sense obligated" to pray in school. Islam's five-prayer-a-day stricture is flexible, he argued, and prayers could be combined in the evening if, say, a noontime prayer had to be missed for some plausible reason.
"Going to school," he told the court, "is one such plausible reason."