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If even such mere possibilities of endangerment or of a conflict as a result of the appearance of the teacher, rather than concrete behaviour that presents itself as the attempt to influence or even proselytise the schoolchildren for whom the teacher is responsible, are to be seen as an infringement of duties under civil-service law or as a lack of aptitude which prevents appointment as a civil servant, then, because this entails the restriction of the unconditionally granted fundamental right under Article 4.1 and 4.2 of the Basic Law, it requires a sufficiently specific statutory basis permitting it. Here, the legislature has a duty at all events to determine the limits of the conflicting guarantees of freedom at least to the extent that such a determination is essential to the exercise of these civil rights and liberties (cf. Since during lessons the headscarf was permanently before the children’s eyes, the possibility that it influenced them could not be excluded, and this alone infringed the requirements of neutrality towards children who had not reached the age at which they could decide on religious matters themselves.On the question of the influence of religious forms of expression in the state education system on the pupils, the Stuttgart Higher School Authority submitted a statement by Professor Dr. Dr. h.c. Oser, Fribourg/Switzerland, as an expert witness.In the oral hearing, the complainant and her attorney, and the The constitutional complaint is admissible and is well-founded. It is not possible to make any statements that are representative of all Muslim women living in Germany on the basis of the interviews conducted and evaluated by the expert witness, but the results of the research show that in view of the variety of motive, the interpretation of the headscarf may not be reduced to a symbol of the social repression of women. BVerfGE 4, 294 (296-297); BVerwGE 11, 139 (141)).Here, the employer must also give a prediction as to whether the applicant will fulfil his or her professional duties in future in the office sought. The headscarf worn by Muslim women is perceived as a reference to greatly differing statements and moral concepts:As well as showing the desire to observe dress rules that are felt to be binding and have a religious basis, it can also be interpreted as a symbol for upholding traditions of the society of the wearer’s origin. The decisive factor here is the influence to which the individual pupil in a compulsory state school and under state responsibility is subjected. Finally, another reason for which there is no need for a statute is that the evaluation of the aptitude of a civil servant has indirect effects in a legal relationship that is material for fundamental rights. The Stuttgart Administrative Court dismissed the complainant’s action and stated as grounds for its decision that the religiously motivated wearing of a headscarf by a teacher constituted a lack of aptitude in the meaning of § 11.1 of the Baden-Württemberg The headscarf worn by the complainant demonstrated strikingly and impressively her profession of Islam; in this connection it was irrelevant that the headscarf, unlike the crucifix for the Christian faith, was not regarded as the symbolic embodiment of the Islamic faith.

The duration and intensity of this confrontation meant that it was not a trifling matter as far as the pupils’ freedom of faith was concerned. Neither the requirement of tolerance nor the principle of practical concordance (In her constitutional complaint, the complainant challenges the decisions made in the administrative procedure and in the proceedings before the administrative courts. Teachers carry out the state’s duty to provide education and training (Article 7.1 of the Basic Law). 65. Such an unconfirmed state of knowledge is not sufficient as the basis of an official application of the indeterminate legal concept of aptitude, which encroaches substantially upon the complainant’s fundamental right under Article 4.1 and 4.2 of the Basic Law.d) At all events, there was not a sufficiently definite statutory basis for rejecting the complainant for lack of aptitude as a result of her refusal to remove the headscarf at school and in lessons.The school authority and the nonconstitutional courts present the view that the complainant’s intention to wear a headscarf as a teacher constitutes a lack of aptitude because pre-emptive action should be taken against possible influence on the pupils, and conflicts, which cannot be ruled out, between teachers and pupils or their parents should be avoided in advance; at present this view does not justify encroaching upon the complainant’s right under Article 33.2 of the Basic Law, which is equivalent to a fundamental right, nor the accompanying restriction of her freedom of faith. The employer’s prediction as to an applicant’s aptitude for a particular office must be based on the civil servant’s duties (§§ 35 2. On the contrary: there is a constitutional requirement to keep the internal organisation of state administration free from the obvious possibility of such severe conflicts, in order that – in the concrete case – school lessons and education at school can proceed without interruption, and in general, because the state must remain capable of acting and must be able to conduct itself with a minimum of uniformity.The majority of the Senate extend the constitutional requirement of the specific enactment of a statute to an area which, because it is dependent on the individual case and because it is subject to existing constitutional obligations, is in practice not accessible to control by statute (cf. BVerfGE 98, 218 (251)).

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