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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Monday, May 30, 2011

The "right" to wear the burqa

A story on whether tertiary students should have a "right" to wear the burqa.

This is always a tricky one. I don't support the ban on face-obscuring clothing, which includes and is obviously aimed at the burqa, recently introduced in France. I don't generally think that governments should have the power to tell us what we can and cannot wear in ordinary public places. In that limited sense, yes, I do support the right to wear a burqa.

But should educational institutions be in the same position as the government? I don't think so. I think that it should be open to educational institutions at least to set some basic standards for dress in class - standards that I would not want governments to set for the public streets.

E.g., some students turn up in rather skimpy clothing on hot days in the summer, and I've never had a problem with it as a teacher, but surely common sense tells us that there is some limit before a class is disrupted. It's going to very difficult conducting a class if, let's say, someone turns up completely naked. It's fair enough for a teacher or an institution not to accept it ... not on any puritanical grounds but simply for the practical reason that it will, in the real world, be disruptive.

Turning up in a burqa may not be quite so disruptive, but it's going to be difficult holding a conversation with someone whose face is totally covered, making communication through her facial expressions impossible. We do this with telephone calls, of course (unless we use Skype), so it's not totally impossible to talk to someone whose face is covered. But nor is it totally impossible talking to someone who happens to be naked. Not totally impossible, but not optimal in the context of, say, a tutorial on the poetry of Gerard Manley Hopkins.

It seems to me that institutions get to make discretionary judgments about what, under current circumstances, is going to cause undue difficulties in the classroom. Perhaps they should err on the side of being inclusive, if they can ... allowing, say, dental floss bikinis, Nazi uniforms, motorbike helmets, and burqas.

Perhaps. But not necessarily.

It's their decision to make. It's not a matter of political rights.


DEEN said...

Another consideration for schools is taking tests. A school should be able to tell that a student isn't letting someone else taking the test in his/her place. How can you do that if you've never seen their face? Admittedly, though, a school might find ways to work around that - i.e., a student could be required to show her face to a female faculty member in a private room.

Rorschach said...

Wait. You're saying a Uni should have the right to dictate a dress code, but a government shouldn't ? And I don't think your analogy holds up particularly well, a naked student I would have one look at and then not worry, but a veiled person arguing in a class would seem to me to be a constant source of irritation and mixed signals, it's like taking part in a forum debate where one person insists on being anonymous.
As to the burqa, Mohammed thought that women should wear modest garments, and only his wife(s) a veil, but not anyone else. The whole idea was abused by the misogynist patriarchic clowns that took over Islam in the Middle Ages, and I don't see why we should not tell those men that the days of putting Muslim women in whole body rugs are over, as far as free societies are concerned.

Russell Blackford said...

Yes, the idea that a uni, or a shop or whatever should have the right to determine what it will allow on its premises, even though it is not illegal is exactly what I think. Are you suggesting there's something wrong with that? That seems to me to be the principled position in a liberal society.

ColinGavaghan said...

I remember the last time you visited this subject, Russell, so I'll squeeze in ahead of the rush!

I'm not sure that the 'disruptive' test can be distinguished from the 'puritanical' one quite so easily. For one thing, it leaves it open for puritanical elements in the class to make damn sure that certain displays of dress are disruptive, precisely by causing a disruption whenever they are worn.

Perhaps you are thinking of some sort of criterion of 'reasonableness', along the lines of 'what would be likely to disrupt a reasonable person'. But I hardly need to point out that there are potential pitfalls down that path.

Rorschach said...

Your distinction seems arbitrary to me, a Uni/private institution X should be allowed to set dress codes, but a government should not. On what grounds exactly ? I mean, fundamentally, I oppose that women should have to wear a full body rug anytime, anywhere (whether they have been indoctrinated into thinking that they want to wear one is really not important in this context), and I think it's about time that we banned the practice. But I don't get how you arrive at the conclusion that it's ok for a University to do so, when at the same time you think for a government it is not. What is the difference between a woman being anonymous in a classroom and being anonymous in say a bank, or on an airplane ? Surely the concerns would be of a very similar nature ?

Russell Blackford said...

Why is it arbitrary? The state is in a totally different position from the various parties amongst whom it keeps the peace.

If I don't want you to come into my house in certain clothing I am totally within my rights to ask you to leave (and get the police if you refuse). Likewise if you come into my shop. Political rights are limits on the overwhelming power of the state, which can kill, imprison, fine, etc. They are not about forcing private parties to associate with each other.

Now, anti-discrimination law may do that to some limited extent. But the policy behind anti-discrimination law is totally different.

Leaving aside whatever limited application anti-discrimination law may have, the liberal position is that we consent to the authority of the state over us, provided it gives us certain freedoms such as freedom of expression. But this doesn't apply to us having to give each other freedom of expression on our property or in our workplace. I can ask you to leave if you insult my other guests, but you can say what you like about them on the public street, so long as it's not defamatory etc.

I can ask you to take your shoes off if you want to walk on my polished floor boards - and forbid you access if you refuse - but the government should not be able to tell you to take your shoes off to walk on the public street.

This is very basic liberal theory. I'm surprised to see any controversy about it.

Russell Blackford said...

Colin, sure. But we do use rough and ready standards of what is reasonable all the time. Tort law would be impossible otherwise, so would industrial relations law, and likewise most forms of adminstrative and judicial review of administrative action. In fact, even many areas of criminal law ...

But I know you know this.

I think that I should even be allowed to make unreasonable decisions about whom I allow in my own home, and you probably agree with me. The dress code of an educational institution? Well, I think it should be as liberal as possible. But I don't think it should be prevented from saying, for example, that no one is allowed to keep their motorbike helmet on in class. In practice, we do have standards of what we consider reasonable cooperation with the class environment. They might be very relaxed standards - in fact I favour this - but that doesn't mean that we are forced to have no standards at all.

Rorschach said...

"This is very basic liberal theory."

My floorboarded home, fenced and surrounded by a meticulously kept lawn on which I do not permit anyone to pea, is not a Uni campus or a bank or a train station or an airport. In my home, I make my own rules, I might ask you to take your shoes off or cover your privates, but I don't think the analogy stretches out to Unis, or train stations, or airports. A burqa is a tool to shame, and oppress, and marginalise women, and I won't be defending any perceived right for one to be worn, be it in the name of liberal theory, or any neanderthal male's excuse of this being an issue of freedom of religion.

K said...

Unless it's on practical grounds, there seems something very wrong with a university enforcing dress codes.

Russell Blackford said...

But I'm not saying that the government can tell you what you can wear at a train station or an aipport. But an airline can certainly have a dress code as to what you can wear on its planes. Likewise a train company for its trains or a bus company for its buses.

In some cases we do restrict the rights of these organisations as a matter of anti-discrimination law. But that is a separate issue. The point here isn't that there is no role for anti-discrimination law; it's that anti-discrimination law, which can prevent certain abuses of private power, is not the same as political rights such as freedom of expression.

People should be allowed to wear the burqa (or to wear a Nazi uniform or a string bikini) in the public street as a matter of freedom of expression. If you're going to argue that employers must allow them in their workplaces, universities in their classes, or airlines in their passenger cabins, that is another thing. You'll need to argue on some other basis, presumably an anti-discrimination basis of some kind, and that is going to be much harder.

Marshall said...

You seem to be arguing for the rights of organizations against both the general government and private individuals. I agree, thinking that a pluralist society should respect that "ethnic" (< gr. 'ethos') boundaries whenever possible. France OTOH apparently wants to enforce a global "secular" standard at the expense of both affinity groups and individuals.

I can't imagine why you say "it's not a matter of political rights"... it seems exactly this is in question.

As to the burqa question, my main feeling is that it's a feminist issue and the average man should butt out. Western men dress anonymously as a usual thing, and for better or for worse when riding buses hardly anybody ever stares at my ass.

Physicalist said...

Back when I was at Berkeley, there was a nudist who would typically show up to class only in underwear and occasionally would be completely nude.

It wasn't nearly as disruptive as you'd expect -- but it was Berkeley.

Secular Dentist said...

I totally agree. A university is a private institution, government is public. However, State run Universities might be different. Still, Professors do have a say in appropriate dress code for their classes. (You cant be naked, or have a loose fitting burqa on an Organic Chemistry lab, for example).

You cannot possibly work adequately on a hospital wearing a burqa or a face covering (funny, you never see muslim female doctors/nurses wearing burqas... IMO another strong point that women wearing burqas are "forced" for lack of a better word).

Also, how about banks? Surely, if you allow burqas in a bank, I am free to wear a ski mask. Maybe I have a rare skin condition and dont want anyone to see... I think the comparisons are endless.

Governments should not say what we should wear, but individual institutions do have a right to say what is appropriate.

steve oberski said...

@DEEN a student could be required to show her face to a female faculty member in a private room.

To the extent that a person has a "right" to wear a burqa in a public place, other citizens have the right not to have to make changes to their life style to accommodate this "choice".

Thinking back to my university days, there could be upwards of a 1000 students sitting for an exam, if a significant proportion of these needed special handling that is a major inconvenience if not loss of rights for those that don't consider the female of the species to be chattels of the closest male relative.

mem said...

If it wasn't an item of clothing associated with a religious belief, then no one would be complaining.

Unknown said...

Maybe rather than "disruptive", say discomforting to the teacher. I recall a lecturer who had a girl in his tute, front row, with no underwear. He asked her to leave, because he was distracted by the view. I think that's fair, and to argue for the girl's right to not wear undies would be wrong. If the burqa makes the teacher uncomfortable, then they can't do their job effectively. Their choice, I think.

GTChristie said...

@Rorschach: I don't see why we should not tell those men that the days of putting Muslim women in whole body rugs are over

Well and good, but the question at hand was what to tell the women who want to wear burqas.

My position on that is "wear whatever you want and it's none of anybody's business. Not an Islamic cleric's, not a university administration's, and not a government's, and not yo mama's.

Too much slicing and dicing above.

woly said...

Russell Blackford: I agree in principle that the owner of private property should be able to dictate the terms of use but in regards to your example, most universities (as far as I am aware) have largely funded by the government. Is it fair for them to dictate a dress code if a large part of their funding comes from the tax payers?

Russell Blackford said...

I agree, that's a complication. I was kind of keeping away from that because the real point I was trying to make was meant to extend beyond universities. But all the same, I don't think the relationship between a student and university is the same as that between a citizen and the government. The government should be enacting laws to keep the peace, to provide for an economic safety net, and so on, but should not be interfering in our private decisions.

A public university is doing something rather specific. It should certainly not be imposing a religion or discriminating on the basis of religion, for example, but it is not acting as a legislature but as an educational institution. People who attend it do so freely, not because they happen to be within a jurisdiction. Unlike a private householder, a public university (or even a private one) is a centre of power that is an appropriate body to have to abide by anti-discrimination laws.

For all that, though, I think it does have a legitimate discretion to impose a dress code as long as it does so for pedagogical reasons. In that sense, it's not like the government, which would have to give some sort of justification such as maintaining the peace if it imposed a code that the burqa can't be worn in public.

This may cut against some American law - e.g. I know public universities get treated as if they are the government for some purposes. But I think we have to be careful about this. E.g., I don't think a university should necessarily be imposing a speech code right across campus for all activities, but I do think that a university teacher should be able to throw someone out of class for using, say, racial hate speech actually in class. That seems to me to be a legitimate pedagogical decision. If a university has a code of conduct enabling teachers to do that, I'm fine with it, even though I wouldn't necessarily want that speech to be made illegal.

Robert Oerter said...

Having had a burqa-wearing student in my class, I can attest that it is unnerving to talk to someone without seeing her face. However, my initial uneasiness diminished over time. I don't see why that uneasiness is any different than someone who was made uneasy by, say, dreadlocks, skin color, or extreme height.

I teach at a public US university and am required to treat all students the same, regardless of what religious symbols they wear. I see my initial uneasiness as MY problem, not hers.

Robert Oerter said...
This comment has been removed by the author.
Irene said...

"Turning up in a burqa may not be quite so disruptive, but it's going to be difficult holding a conversation with someone whose face is totally covered, making communication through her facial expressions impossible."

For deaf persons who read on the lips, it also makes verbal communication with a woman in a burqa impossible. A consideration the university or school needs to ponder if it also wants to be inclusive of people with disabilities.

Irene said...

@ Robert Oerter: It's interesting to see the diverse perspectives on this topic, sometimes because of differences in cultural and social context.

For instance, in your country, public universities are required to make no discrimination between students wearing religious symbols or garments. I happen to live in a country where, for historical reasons, the norm is to ban all religious symbols from public edifices and institutions. (This is different from the recent, and very controversial burqa ban, which I oppose for the same reasons as Russell in his article, but also because it's a law targeting a specific religious group and part of a general climate of heightened xenophobia. In addition, it gives religious extremists the opportunity to portray themselves as victims.)

So for instance, in publicly funded schools and universities, both students and teachers can't wear hidjabs, but the same goes for kippas or crosses. (This is normally enforced within reason: for instance, a Muslim female student who ties her hair with a bandanna will not face sanctions, because that style can be a fashion statement devoid of religious significance. But the typical hidjab can be nothing but a religious symbol. Same thing if a Jewish student replaces his kippa by a cap while at school.)

This is a dress code devised to treat everybody the same, regardless of their religion, and it's generally well accepted. There have been trouble in some cases either when a) either the school went to far (recently, for instance, banning a Muslim student over a long dress even though she didn't wear a head-veil, simply because it was an Arabic-style dress), or b) the student or students were being particularly uncooperative (refusing to replace a hidjab by some other less obviously religious head wear), either out of religious zeal, or because of social pressure from peers and family, or sometimes, maybe, as a way to express feelings of rebellion against society.