Despite a memorandum from the French Education Ministry dated November 9, 2022, the wearing of the abaya in public schools continues to cause controversy and has led to the creation of a new text.

While delivering on the promise of the ban announced by Education Minister Gabriel Attal, the August 31 memorandum unsurprisingly consists of a reminder of the exisiting legislation (a memorandum cannot add to an existing law). This is the March 15, 2004 law that applies the principle of secularism to the wearing of symbols or clothing expressing a religious affiliation in public schools.

In addition to providing an exceptionally strict framework for the wearing of religious symbols by students, the law's explanatory memorandum stated that its aim is "to enable teachers and school heads to carry out their duties with peace of mind, by establishing a clear rule." Today, however, it is "the growing popularity of abaya or khamis-type clothing [that] has given rise to a large number of questions as to what should be done."

How can these questions be explained when the 2004 law seems clear and the applicable law, inevitably case-by-case, has been regularly clarified ever since? There are two possible explanations for this persistent need for further directives: The 2004 law was ambiguous from the outset, and it enshrined a specific conception of secularism.

Specifically designed for the Islamic head covering but subject to the requirements of its legislative status, the March 15, 2004 law was intended to set a general standard. The law's contortions of terminology to avoid designating the Islamic veil are at the root of a concept that needed clarification before it could be implemented.

The May 18, 2004 memorandum introduced a list of symbols and outfits "the wearing of which leads to immediate recognition of one's religious affiliation" (Islamic headscarf, kippah, large cross). And, above all, it interprets the law as prohibiting students "from invoking the religious character" they attach to a symbol or outfit. Since 2007, the Conseil d'Etat, France's highest administrative court, has interpreted this to mean symbols or clothing "the wearing of which ostensibly demonstrates a religious affiliation solely due to the student's behavior."

The memorandum therefore opened the floodgates to subjectivity and the possibility of a secular administrative authority itself qualifying a symbol or garment as "religious." The memorandum issued on August 31, 2023, echoes the broad formulation of the law and does not choose between religious garments "by nature" and what has been qualified as religious clothing "by intent."

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