NORWAY: Parallel complaints agree
schools must teach, not preach

 

Summary

A group of parents objected to their children being involved in compulsory religious classes, claiming that the content was “neither objective, pluralistic or neutral” and that there was no way for them to opt out of the subject. After having their claim rejected by national courts the parents split into two smaller groups, separately lodging their cases with the European Court of Human rights and with the UN’s Human Rights Committee. Despite winning both cases they are still fighting for better religious education in Norway.

Background

Norway’s school system was created 1539 as a result of the Reformation, with the teaching of the tenets of Christianity among its main aims. Formal classes on Christianity were present in the curriculum since at least 1739 and for hundreds of years students were obliged to learn about, and often take part in, Christian worship and traditions while they were attending all Norwegian schools. Starting in 1889 members of other religious communities were allowed exemptions from this subject, but the focus on the country’s Evangelical Lutheran Faith to the exclusion of all other belief systems remained in place for almost another century.

In 1969 the country’s Parliament decided to separate the teaching of the church’s history and basic knowledge of the Evangelical Lutheran Faith for children from the actual practice of Christian worship. One part of the law passed in 1969, the “Christian object clause”, stated that primary schools would need to provide children with “a Christian and moral education”, but allowed children whose parents were not members of the Church of Norway to be exempted in whole or in part from lessons on Christian faith and taught philosophy instead.

By 1995 consultations on a new curriculum, which proposed that Christianity, other religions and philosophy be taught together in one subject, were presented to the nation. One important caveat of the new religious subject (known as KRL) was that students would not be able to opt out of teaching about Christianity without their parents sending a written note to the school explaining which exact elements of the syllabus parents deemed as “amount[ing] to the practice of another religion or to another philosophy of life”.

Bente Sandvig, a former teacher who was working with the Norwegian Humanist Association (NHA), was among those who opposed this caveat, adding that all of Norway’s religious minorities objected to the new curriculum. “We all came together for the first time ever actually - to oppose this,” she explained:

“We formed a broad coalition and we lobbied against the proposal, we went to talk with our politicians, but they were too concerned with compromising our rights away”.

After endorsement by a parliamentary committee, the curriculum moved forward, with representatives explicitly noting that: “The subject should place emphasis on the teaching of Christianity”. In 1997 the new combined subject was introduced into schools, and parents from religious minorities, including several humanists, made unsuccessful requests to have their children entirely exempted from KRL.

Domestic challenges to the curriculum

After seeing their efforts at influencing politicians fail, the coalition of religious minorities began to consider other options. The NHA decided to bring cases before Norway’s courts, challenging the decision to deny children exemptions from KRL. The chairman of NHA’s board, Lorentz Stavrum, agreed to represent the organisation in court. A partner at a private law firm, Stavrum had also worked for the government, the police and as a judge, giving him more than 20 years of legal experience.

Sandvig explained that, as Norway had incorporated many of the relevant human rights conventions into national law, they were initially optimistic about their chances. When it came to actually bringing their cases before Norwegian judges, they were shocked.

“We went through all three levels of justice in Norway fighting at the city court, then the high court and then the supreme court. And we lost all over the place.”

She continued: “I think we were a bit naive as well because we thought we would win in the Norwegian court system. We thought it was so obvious that the politicians had given away the parents’ right to decide about their children’s religious education.

“When we got into the room where the supreme court resides, there was a big cross on the chair of the judge who was leading the proceedings. That was an eye-opener.”

After the loss the parents agreed to challenge the government at the international level and Stavrum decided to take a novel approach. The NHA split the original group of parents in two, with half making a complaint to the European Court of Human Rights and the other approaching the UN’s Human Rights Committee (UNHRC), with the aim of bringing the pressure of two international mechanisms to bear on the government at once.

All the while NHA continued to pressure the government, sought opportunities to gain media attention and tried to meet with officials who could seek change. They were handed one such opportunity in 2000 when the Committee on the Rights of the Child singled out religious education in Norway as an issue, particularly focusing on the time-consuming process of exempting children as potentially discriminatory.

Stavrum recalled: “I worked with the parents and the association for a long time before the case was brought to court, with the hope to have a reasonable solution for my clients without having to bring it to the courts, in vain.”

The UN Human Rights Committee

In 2003 the case presented by half of the original group of parents was considered by the UNHRC. Norway’s government sought to derail the proceedings by claiming that the “same matter” was being heard by the European Court at the same time, making both cases inadmissible. The parents argued that they were two groups, and the fact that they had worked as one group before the national courts was not important because they were now approaching two different avenues for justice as two groups of unrelated individuals.

The UNHRC agreed with the parents and released its decision in 2004. In its deliberation the Committee noted that the government’s own evaluation had found the exemption system to be inadequate and accepted that the system could cause a conflict of interest between parents, children and their schools.

The government argued that religious instruction imparted in a neutral and objective way complied with other human rights standards, insisting that its textbooks were not aimed at indoctrinating children. It further contended that the subject being discussed was aimed at creating tolerance and mutual understanding, which would not be possible if a full exemption was readily available to everyone.

The government even went so far as to suggest that Humanists could set up private schools as a “realistic and viable alternative”, claiming the State would pay 85 percent of all expenditures related to the operation and functioning of private schools.

In its final decision the Committee noted that “some of the activities in question involve, on their face, not just education in religious knowledge, but the actual practice of a particular religion”, concluding that religious education in Norway was not being delivered in a neutral and objective way, but rather promoting Christianity above other religious and life stances.

The UN experts noted that the system of partial exemptions placed a burden on parents to acquaint themselves thoroughly with the curriculum if they wanted to object to aspects of the subject which were “clearly of a religious nature”. It noted that needing to know what would be taught in detail, as well as the potential for children being treated differently by their peers, could deter parents from exercising their right to having their child exempted.

The Committee agreed that Norway had violated the right of parents to choose the kind of moral or religious upbringing their children have, as set out in Article 18, paragraph 4 of the International Covenant on Civil and Political Rights.

The European Court of Human Rights

The second half of the original group of parents brought their complaint before the European Court in 2002, but had to wait a further five years for a decision. These parents challenged the partial exemption provision of the Education Act, arguing that refusing to grant full exemptions violated the parents’ and the children’s rights to freedom of thought, conscience and religion under the European Convention on Human Rights.

Norway offered defences similar to those given before the Human Rights Committee. The government contended that KRL did not violate the right of parents to have their children educated in line with their religious or philosophical convictions and that the subject was intended to promote understanding, tolerance and respect among students from different backgrounds, and to teach about the history and values of Norway objectively. While Norway conceded that Christianity was mentioned more than other religions or philosophies, it argued that this was because it was central to Norwegian history and culture.

The ECtHR’s final decision was released in 2007, giving the Humanists a narrow victory. The final tally showed that nine judges voted to say there had been a violation of the parents’ rights, while eight disagreed.

“I think we wouldn’t have won it today,” Sandvig added, “But one of the things that made us win, even in the court, was this Christian object clause. Until at least 2010 the educational system of Norway had an aim of helping parents to give their children ‘a Christian and moral upbringing’. I think that was a bit too much for the court.”

The court’s final judgment noted that while Christianity represented an important part of the cultural history of Norway, the application of the “Christian object clause” and the emphasis placed on the religion in the curriculum and everyday teaching suggested the subject carried a religious message.

The judges noted that the curriculum allowed pupils to study the “main features of and important narratives from Islam, Judaism, Hinduism and Buddhism”, but in relation to Christianity they were expected to “learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon of the Mount”, among other lessons.

Though the court suggested that KRL had admirable objectives, it ruled that the partial exemption scheme was unworkable as it was too difficult for parents to single out elements of the curriculum from which they sought exemption for their children and because it required them to divulge personal religious and philosophical convictions to teachers.

The court also firmly rejected Norway’s suggestion that parents enroll their children in private schools, as “the existence of such a possibility could not dispense the State from its obligation to safeguard pluralism in State schools which are open to everyone”.

Impact

After the NHA’s two victories, the State agreed to change. In June 2008, The Ministry of Education and Research announced that KRL would become ‘Religion, Philosophies of life and Ethics’, a new subject designed after taking into account the ruling of the European Court and the decision of the Committee. The government noted that this subject would still spend more time on Christianity than on other religions in order to reflect Norway’s heritage, but that there should be no difference in the quality of education provided about other faiths or life stances.

In September 2013, four Norwegian political parties proposing to create a coalition government suggested that the new subject be changed to “Christianity, religion, philosophy and ethics”, with Christianity taking up 55 percent of all teaching time. This revised curriculum was adopted in 2015, though it was mostly a symbolic change, and did nothing to improve the efficacy of the exemption system. In January 2019 a coalition of Christian Democrat and Conservative politicians in government announced that schools should “promote cultural heritage and values”, in a statement which is expected to lend support to teachers who choose to spend more time on Christianity in their religious education classes.

Sandvig said she considers their efforts a success, despite recent setbacks. She explained: “We got some very important experience, and we also impressed the Norwegian politicians. They have to listen to us after this. There hasn’t been any committee which hasn’t had the Norwegian Humanist Association on board after this, whether they’re looking into the school system or the relationship between state and church and life stance community.

“Then again you could also say we won this, but we’re not really happy with the subject as it is today. It’s still very much like the subject we made our protests against.”

Stavrum agreed, but issued a word of warning to those considering similar cases in their own countries: “It took ten years to get the final result from the ECHR and seven for the UN Human Rights Committee, from the day of the enactment of the new school subject regulations. This fact shows that it takes time, capacity and patience to carry out a process like this. My advice to other parents in a similar situation would be to seek qualified legal advice early in the process, and not to expect quick results.”

Further information

CRIN’s collection of case studies illustrates how strategic litigation works in practice by asking the people involved about their experiences. By sharing these stories we hope to encourage advocates around the world to consider strategic litigation to challenge children's rights violations. For more information, please visit: https://www.crin.org/en/home/law/strategic-litigation/strategic-litigation-case-studies.