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Color-blind racism in France: bias against ethnic minority immigrants.


France has a full array of antidiscrimination laws, but they have been largely ineffective. This may be attributable to the nation's official color-blind policies and its refusal to recognize race and ethnicity as social constructions that influence individuals' interactions. Conflicts involving ethnic minorities are seen as an "immigrant" problem. This masks the ethnic discrimination inflicted on non-white residents and delegitimizes them as "foreigners" who are not part of French society. France's refusal to collect data on race and ethnicity makes it difficult to measure the effects of discrimination, but researchers have found alternative means of collecting data. (233) The primary antidiscrimination provision in French law is Article 225-1 of the Penal Code, which originated with the enactment of a 1972 law that prohibited racial discrimination. (234) The 1972 law modified the freedom of the press statute of 1881, which prohibited attacks in the press against racial and religious groups. (235)

The 1972 statute strengthened the prohibitions against hate speech by criminalizing speech that provokes racial hatred. (236) It also prohibits defamation; racial insults; and groups that provoke discrimination, hatred, or violence based on ethnicity, national origin, race, or religion. (237) In the United States repugnant speech of this sort is protected by the First Amendment. (238) The 1972 law also criminalized discrimination on the basis of a person's origin, ethnicity, nationality, race, or religion. (239) The statute "prohibits] public authorities and officials from refusing to provide a benefit or a right on these grounds." (240) "The statute prohibits] employers from firing or refusing to hire someone on the basis of their origin, ethnicity, national origin, race, or religion. (241) The French antidiscrimination laws have been expanded to include discrimination based on sex, pregnancy, familial status, physical appearance, family name, state of health, handicap, genetic characteristics, sexual orientation, age, political opinions and union activities. (242)

A 1982 labor law banned discrimination in hiring, firing, disciplining, training and promotion on the basis of origin, race, sex, familial status, political opinions, union activities, or religious convictions. (243) A 1990 statute outlawed all racist and anti-Semitic acts. (244) The 1990 law prohibits "the denial of the existence of crimes against humanity as defined by the 1945 Treaty of London." (245) The law also prohibits the denial of the Holocaust in "public places, in writing, print, drawings, inscriptions, paintings, emblems, images, or other speech or image sold or distributed or put on display." (246)

In 2004, the French Parliament enacted a statute that created the French Equal Opportunities and Anti-Discrimination Commission, (Haute autorite de lutte contre les discriminations et pour l'egalite or "HALDE"), an administrative agency whose mission is to fight discrimination in France. (247) Like the US Equal Employment Opportunity Commission, (248) HALDE cannot impose sanctions and "has limited investigatory powers." (249) "Its main function is to process individual claims, facilitate conciliation, and to assist in gathering evidence for criminal or civil actions." (250)

The French antidiscrimination laws allow for both criminal prosecution and civil actions for employment discrimination. (251) A law passed in 2001 "modified the Labor Code's antidiscrimination provision by adding a prohibition against indirect discrimination, and also by easing the burden of proof for plaintiffs in employment discrimination cases." (252) Most of the legal actions challenging employment discrimination have been criminal proceedings. (253) The country's reliance on criminal law has made it difficult to enforce antidiscrimination laws because of the high burden of proof and the difficulty of proving subjective intent. (254) A conviction requires proof of discriminatory intent. (255) Proof must show guilt beyond a reasonable doubt. The presumption of innocence and the heightened burden of proof in criminal proceedings makes it extremely difficult to prove discrimination. (256) "There were three convictions in 1997, seven in 1999, sixteen in 2000, and twenty-nine in 2002." (257) Professor Julie Suk has concluded that French antidiscrimination laws have been so ineffective, because:

   [the] formal prohibitions of discriminatory hiring have no
   deterrent effect in France. The reality is that employers clearly
   discriminate against candidates of North African descent,
   resulting in this population's disproportionately high levels of
   unemployment. The persistence of discrimination in hiring,
   despite the formal legal prohibition of such conduct, is
   explained by barriers to the effective enforcement of this
   prohibition in French criminal and civil procedure ... Most
   discrimination cases are brought in criminal proceedings, and
   convictions are very rare. Antidiscrimination law hardly deters
   even the most overt forms of discrimination. (258)

As this Professor Suk's observation and the discussion in following sections of this Article indicate, unlawful discrimination against ethnic minorities is not taken seriously in France. Overt discrimination is widespread and tolerated. Discrimination against ethnic minorities is obscured by the French belief that it is color-blind, and by stereotypical attitudes about North and sub-Saharan Africans. Discrimination against these groups is not taken seriously as they are regarded as foreigners rather than French citizens entitled to equal protection of the laws.


Ethnic minorities in France are exposed to persistent discrimination in the labor markets. As one researcher explained, "the statistics that have been collected are consistent with the inference that, by most measures, persons of North African descent are disadvantaged in employment relative to other residents of France." (259) During the post-World War II period, many French workers moved from industrial occupations to more desirable occupations in the service sector. Foreign workers replaced them. (260) When immigration was halted in 1975, many foreign workers were deported. (261) The acting administration hoped that French nationals would take the jobs vacated by departing foreign workers, but this did not happen. (262)

France's immigrant labor force has traditionally been overrepresented in the industrial sector. (263) In 1975, two-thirds of immigrant workers held industrial jobs. M A significant proportion of them worked in the construction industry. (265) In comparison, the majority of native-French workers were employed in the service sector. In the 1970s, native-French workers left construction jobs because the wages in the building trades were low compared to other sectors. (266) The working conditions were unattractive with high accident rates, poor sanitation, and frequent layoffs. (267) Foreign workers became concentrated in low-wage jobs in the construction industry (268) and other sectors where there was high turnover. (269) As jobs were eliminated by de-industrialization, immigrants bore the brunt of the job losses. (270) From the mid-1970 on, immigrants were increasingly concentrated in low-wage, service sector jobs such as domestic work and jobs in hotels, cafes, and restaurants. (271)

These and other employment barriers experienced by immigrants and their children cannot be fully explained by low educational attainment or a lack of social networks. Researchers have labeled this labor market phenomenon as the "ethnic penalty." (272) Ethnic penalties are the net disadvantages experienced by ethnic minorities after controlling for their educational qualifications and experience in the labor market. Some of the explanations for ethnic disparities in the labor markets include: lack of social networks, "spatial mismatch," proximity to jobs, (273) and differences in individuals' aspirations. (274) However, discrimination on the basis of ethnicity, national origin, and religion was the most significant factor. (275)

The results of the ethnic penalty are observable in various employment statistics and situations. The unemployment rates of immigrants are much higher than workers who do not have immigrant backgrounds. (276) This is especially the case for workers from Algeria, Morocco, and Tunisia. (277) The children of North African immigrants earn about 20 percent less than those of French natives. (278) Given the relatively low degree of earnings inequality in the French labor market as a whole, the ethnic disadvantage represents a large earnings penalty. The earnings disparities between second-generation immigrants from North Africa and other French citizens is largely attributable to the difficulties they experience in obtaining jobs. (279) Some of the barriers to the labor markets are caused by citizenship requirements for a number of public service jobs. (280) Social class distinctions, geographic isolation, and ethnic prejudice also limit employment opportunities for immigrants. (281) High levels of unemployment and overrepresentation in low-skilled jobs combine to lower the average earnings of immigrants as compared to French citizens. (282) In addition to unemployment, these groups also experience more frequent layoffs. Several studies show the descendants of North African immigrants are particularly susceptible to unemployment as a result of their over-representation in low-paying jobs that are subject to frequent layoffs. (283)

One of the main difficulties ethnic minority workers face is obtaining entry-level positions that lead to higher-level positions. In 2006, the Department of Research and Statistics (DARES) of the French Ministry of Labor commissioned the International Labor Office to study discriminatory employment practiced aimed at ethnic minorities in France.... (284) The "matched pair" study compared the treatment of individuals with carefully matched attributes (age, education, etc.) as they sought employment. (285) Surveys to collect data were conducted in Lille, Lyon, Marseille, Nantes, Paris, and Strasbourg. (286) The tests covered vacancy notices for low- and medium-skilled jobs in the hotel and restaurants sector; commerce; services to the public, communities, and enterprises; transportation; reception and secretarial services; health and social work; and building and public works. (287) In one test, the applicants who tested the vacancy notices were young French men and women at the early stages of their careers, of either North African, sub-Saharan, or French origin. (288) In another study, the International Labor Office sent two identical curricula vitae ("CV"s) to two hundred and fifty-eight employers, only bearing different candidate names. For example, one CV had a French first and last name; the other a North African name. The same address was given on both CVs. The first CV with the French name received seventy-five requests for an interview while the second received fourteen. (289)

These results taken together with other research has consistently found that immigrant origin has a distinct effect on labor market participation. (290) The disadvantages are reflected in a wide range of constraints that affect the chances of finding employment as well as the types of jobs available to immigrants. (291) These studies show widespread and persistent discrimination against workers with North and sub-Saharan Africa backgrounds. (292)


The academic performance of children of North and sub-Saharan African immigrants is consistently lower than that of their French counterparts. (293) The analysis in this section shows that teachers perceive ethnic minority students from immigrant backgrounds differently and less favorably than similarly situated students from French families. Teachers tend to focus on the classroom behavior of ethnic minority students rather than their academic potential. These documented attitudes can interfere with students' academic progress.

Under the French educational system, children from six to eleven years old are enrolled in elementary schools. (294) These preparatory primary schools first develop linguistic abilities and provide civic education. The second curriculum cycle includes the study of foreign and regional languages, mathematics, arts, and physical education. (295) The final cycle adds literature, history, and geography to the curriculum, along with the experimental sciences and technology. (296) The next level in secondary schooling, college, enrolls students aged twelve through sixteen years without requiring an entrance examination. (297)

Tracking students in upper secondary school is determined by the process d'orientation, which is decided by teachers and inspectors on the basis of students' grades and the families' preferences. (298) Students may follow very different tracks. The lycee general et technologique is the most prestigious option. It represents the most direct path to university studies. After two years, students can be eligible for a general or technological baccalaureat ("BAC"). (299) Another track is the lycee proffesionel, which, after two years, provides the brevet d'etudes proffesionels (BEP). (300) The lycee proffesionel differs from the lycee general et technologique in that one prepares students for university studies while the other is vocational, preparing students to enter the workforce.... The other vocational credential is the certificat d'aptitude professionnelle ("CAP"), which prepares the students for a specific occupation. (301) Most French families believe that the baccalaure at is the minimum educational level their children should obtain. (302) People of North African descent are more likely to prefer the preparation for university track for their children. (303) They perceive educational attainment at the highest-level as a way to achieve upward mobility. (304)

However, a persistent achievement gap exists between French students and those with immigrant origins. In 2011, Professor Hector Boado published an article that examined the educational outcomes of immigrant students in French schools. (305) He concluded that students with immigrant origins were disadvantaged in the transition from lower to upper secondary school. (306) A 1989 study showed 65.1 percent of the French students went on to the general (upper) track, but only 51.7 percent of foreigners did so. (307) Only 56.4 percent of foreign-born children with two foreign-born parents were invited to proceed to the Seconde general et technologique. (308) The French-born children with two foreign-born parents did so in 52.2 percent of the cases. In comparison, 65.5 percent of the children of French parents entered this track. (309) Professors Brinbaum and Cebolla-Boado's study examined immigrant families from Portugal and North Africa and found that immigrant families had higher educational expectations about their children's education than French working-class families. (310) North African families were more likely to prefer longer studies in general or more academic tracks. (311) However, the children of immigrant families performed at levels lower than national averages at the secondary education level. (312) The researchers suggested the disparities were caused by the lower educational attainment levels of immigrant parents as compared to French families. (313) The children of immigrant families are more likely to enter the general and technological tracks that can lead to university studies, but their success is limited as they tend to perform at lower levels than other students. (314)

In 1982, a French version of affirmative action was established by the creation of Zones d'Education Prioritaires ("ZEP"), in which additional resources were given to public schools in banlieues to provide students with enhanced opportunities for academic success. (315) When President Jacques Chirac was re-elected in 2002, the government eliminated this and other policies implemented from 1997 to 2002 by the Socialist Party government of Prime Minister Lionel Jospin. (316) This eliminated the special programs that were put in place under the previous administration.

Researchers have attempted to determine the causes of immigrant students' underperformance. The book, Muslim Girls and the Other France: Race, Identity Politics and Social Exclusion, contains a detailed study of socioeconomic exclusion in France, particularly in its educational system. (317) The book is the product of an ethnography conducted by Professor Tricia Keaton in Pantin, the Departement of Seine-St-Denis, a Paris suburb. (318) Keaton critiqued the French education system's ideological function for its exclusion of Francophone perspectives. (319) The educational curriculum also tends to overlook the nation's history of colonization and slavery.

Keaton described the obstacles the Muslim girls in her study encountered at school. (320) The girls were highly motivated and hoped to obtain baccalaureat degrees. (321) Keaton described the ways in which the girls attempted to navigate male supremacist attitudes at school, the constraints imposed by constant policing by their families (Muslim girls cannot go out without a chaperone), and religious intolerance at school. (322) The problems at school included the teachers' misunderstanding of the reasons underlying girls' academic underperformance. (323) Lower academic performance was not so much a function of inadequate written expression skills (as teachers assumed) as it was the result of a lack of cultural resonance for the students. Keaton found that additional problems resulted from inadequate study conditions at home, which were created by overcrowding, heavy domestic responsibilities, and parents' objections to certain aspects of curricula (such as sex education). (324) The workloads, inadequate training, and insufficient support for teachers also contributed to students' academic problems. (325)

Other research observations are similar to Keaton's findings. Since the 1970s, studies have shown how teachers perceive immigrant and French students differently. (326) In one study, teachers were asked to judge children on the basis of their physical appearance, ways of dressing and talking, politeness, and other personal characteristics. (327) Children of foreign laborers were consistently considered to be the least appealing, followed by children of French working-class families. (328) French children from middle- and upper-class families were described as the most attractive by the majority of teachers. (329)

In another study that examined teachers' comments about different students, researchers determined that teachers evaluated French students on their academic performance and intellectual potential. However, the teachers tended to focus on the classroom behaviors of foreign students, particularly those of North African origin. (330) Another study involving interactions among teachers and North African students showed that teachers often judged the students on the basis of their behavior and gestures describing the students as insolent, voluble, curious, secretive, susceptible, and proud. (331) According to other research, teachers described North African girls as arrogant. (332)

The teachers' focus on behavior, gestures, and attitudes reveals the educational system's unconscious bias against immigrant-population students. As Pierre Bourdieu explained in his study of the French educational system, success in school entails a wide range of cultural behaviors, including non-academic attributes such as comportment, dress, and accent. (333) Children from middle-class families have learned this behavior, as have their teachers. Children from working-class backgrounds have not. Middle-class students' speech, dress, and mannerisms fit the expectations of their teachers. Students from lower income families are often seen as "difficult" and presenting "challenges." (334) However, both groups behave in accordance with the norms of their communities.

What is seen as the "natural" ability of affluent students is, in reality, the product of their parents' social and economic status. (335) Privileged children are inculcated with speech patterns, styles of dress, and comportment that facilitate their success in the educational system. Their affluent backgrounds, conditioning, and experiences equip them with the attributes needed to reproduce their parents' social position. Too often, teachers erroneously interpret these class-based advantages as a reflection of "hard work" or "innate" ability. (336) The teachers' assumptions and stereotypes about students from immigrant families create obstacles to learning that other, more privileged students do not encounter.


The conflicts involving ethnic minorities in France have been highlighted by the country's controversial decisions to ban headscarves in schools and burqas in public places. These actions are skirmishes in France's culture war against Islam. Proponents of the headscarf and burqa bans justify those laws with the doctrine of laicite ("secularism"), which can be traced back to the French Revolution. France's history of conflict with the Catholic Church that led to an official policy of secularism. (337)

The roots of this break with the Catholic Church can be traced back to the Enlightenment period, a time from approximately 1700 to 1800 that was characterized by dramatic revolutions in science, philosophy, society, and politics. (338) During this period, wealthy members of the French bourgeoisie hoped to gain more significant positions in France's aristocratic society. (339) Under the "Ancien Regime" (old order), the political and social system that existed in France before the French Revolution, the Catholic Church was the largest single landowner in France. (340) There was a great deal of resentment of the privileges that were enjoyed by the clergy and aristocracy. The middle class--consisting of professionals, manufacturers, and their allies--began to demand a role in French society consistent with their economic status. (341) French aristocrats and lesser royals, as well as the Catholic Church, rebuffed the middle class no matter how wealthy they were. (342)

The concepts of liberte, egalite, and fraternite ("liberty, equality, and fraternity") considerably diminished the Catholic Church's power and influence during the French Revolution. (343) Anti-clerical campaigns included the deportation and execution of clergy, the closing of churches, the destruction of religious monuments, and the outlawing of public and private worship and religious education. (344) In 1789, the Constituent Assembly nationalized church property. (345) The following year, the Assembly enacted the Civil Constitution of the Clergy, which required all priests to swear an oath to uphold the Constitution. (346) These requirements created a sharp divide between Catholic priests who accepted the Civil Constitution and those who did not.

In 1801, Napoleon attempted to heal the division when he negotiated a concordat with the Catholic Church that provided for the collaborative appointment of bishops: the state nominated bishops and the pope appointed nominees. (347) Additionally, priests became civil servants paid by the state. The Church also relinquished its claims to recover property nationalized in the Revolution and ceded control over marriage, family law, and education to the state with the enactment of the Civil Code of 1804. (348)

The French educational system was completely secularized in the late nineteenth century with the enactment of the "Ferry Laws" in the 1880s. (349) As Joan Wallace Scott observed in The Politics of the Veil, the principles of secularity in schools "made primary education a requirement for boys and girls and ... effectively banished from the classroom religion as a subject and priests and nuns as teachers." (350) The French government formally ended relations with the Catholic Church in 1905 when it adopted a law on the separation of church and state, codifying the principle of laicite. (351)

What became known as l'affaire du foulard (the headscarf affair) began in October 1989, when the principal of Gabriel-Havez College, a Muslim-majority middle school in the Parisian suburb of Creil, suspended three Muslim schoolgirls of North African descent for wearing headscarves. (352) The Creil incident generated national attention. (353) The headmaster's decision was later reversed, but the Education Minister, Lionel Jospin, submitted a request to the Conseil d'Etat for an advisory opinion on the matter. (354)

The Conseil held that the principle of secularity and the protection of freedom of religion in France could be reconciled. Students in public schools had a right to religious expression as long as their actions did not interfere with the other student's right to religious freedom. However, schools are permitted to sanction students when their religious expression threatens public health, security, or order. (355) The Conseil's decision stated:

   In schools, the wearing by students of signs by which they
   intend to manifest their religious affiliation is not by itself
   incompatible with the principle of secularism, insofar as it
   constitutes the exercise of freedom of expression and freedom
   of manifestation of religious beliefs, but ... this freedom
   would not allow students to sport signs of religious affiliation
   that, due to their nature, the conditions in which they are worn
   individually or collectively, or their ostentatious character or
   display as a protest, would constitute an act of pressure,
   provocation, proselytism or propaganda, or would jeopardize
   the dignity or freedom of the student or of other members of
   the school community, would compromise their health or
   safety, or would perturb the conduct of teaching activities or
   the educational role of the teachers, or would disturb order in
   the establishment or the normal operation of public service. (356)

This is a questionable conclusion as there was no concrete evidence that wearing scarves interfered with classroom instruction or disrupted the operation of the schools. Many of the Conseil's conclusions were speculative. A more credible explanation for the ban was the display of an Islamic religious symbol that offended school officials. This underscores the substantial differences between the American and French views of freedom of expression and religion. A veil ban would not be permitted in the United States under the First Amendment. (357)

In 1997, following the election of a Socialist Party majority in the Parliament, the Education Minister issued an order prohibiting ostentatious religious symbols in public schools. Two thousand Muslim students refused to comply with the order. This defiance resulted in the presentation of forty-nine cases to the Conseil d'Etat, forty-one of which were concluded with decisions in favor of the Muslim students. (358) Nevertheless, the public controversy continued. (359)

In 2003, President Chirac announced that Bernard Stasi, the ombudsman of the French Republic, would lead a new executive commission to conduct a study of French secularism and the headscarf controversy. (360) The Stasi Commission was composed of twenty members, most of whom were distinguished intellectuals, politicians, and political appointees. (361) Several members of the Commission were members of religious minority groups. (362) On December 11, 2003, the Stasi Commission issued a report that recommended banning the wearing of ostentatious religious symbols--including skullcaps, headscarves, and crosses--in public schools. (363) President Chirac agreed that wearing headscarves was "an act of aggression" (364) and recommended a ban on headscarves in public schools and other ostentatious displays of religious faith. (365)

On February 10, 2004, the French lower house of Parliament passed a bill banning headscarves by a vote of four hundred and ninety-four to thirty-six. (366) On March 3, 2004, the French Senate approved the bill by a vote of two hundred and sevety-six to twenty and President Chirac signed the bill into law on March 15, 2004 ("the Act"). (367) The Act prohibits the wearing of "ostentatious religious symbols" in elementary, secondary, and high schools funded by the state. Approximately 70 percent of the French public expressed strong support for the Act in opinion polls. Almost half the Muslim population polled supported the law, and about half of the Muslim supporters were women. (368)

The veil controversy subsequently moved from schools to the streets. (369) An October 14, 2010, a Mail Online article reported that:

   A female lawyer allegedly ripped another woman's burka off
   in a clothes shop--and told her to 'clear off to your own
   country'. The 26-year-old Muslim convert said the 60-year-old
   lawyer made 'snide remarks' about her Islamic veil. An
   argument followed during which the older woman is said to
   have ripped the veil off, before the Muslim woman allegedly
   punched her. Both women were arrested. The row happened in
   Trignac, near Nantes, France, as the country prepares to
   introduce a ban on the burka. A police officer said: 'The
   lawyer said she was not happy seeing a fellow shopper wearing
   a veil and wanted the ban introduced as soon as possible. 'At
   one point the lawyer, who was out with her daughter, is said
   to have likened the Muslim woman to Belphegor--a horror
   demon character well known to French television viewers. The
   lawyer's use of the name 'Belphegor' was particularly
   inflammatory, said police, because the demon was portrayed
   by classical writers as 'Hell's ambassador to France' ... Police
   said the incident was still being investigated, and that charges
   could follow. (370)

This conflict was an example of the strong feelings of many French citizens who were offended by Islamic clothing. On June 22, 2009, President Sarkozy delivered a speech in which he expressed his disapproval of Muslim burqas saying they were a violation of "the French [Republic's idea of women's dignity." (371) He also said "[t]he burka is not a sign of religion, it is a sign of subservience. It will not be welcome on the territory of the French republic" (372) The French Parliament subsequently established a commission to investigate the practice of Muslim women in wearing burqas. (373) After a five-month study, the commission issued a report stating that wearing full veils challenged the secular values of the French Republic and condemned what it viewed as an excessive display of religious symbols in public places. (374)

On July 13, 2010, the French lower house of Parliament passed a ban on face covering veils that public. (375) On September 14, 2010, the French Senate followed the lower house's lead and approved the measure. (376) When the law was challenged, the French Constitutional Council concluded that it did not have a disproportionate impact on Muslim women or prevent their free exercise of religion. It ruled that "the law conforms to the Constitution." (377) This conclusion was factually inaccurate as Muslim women were affected more than any other group. (378) Prohibiting headscarves and veils will not resolve that nation's conflicts with ethnic minorities. The conditions in which these groups reside, their mistreatment in schools, the discriminatory barriers to employment, and the harassment of young banlieuesards are issues that must be addressed.


France's headscarf ban would be unconstitutional in America because it would violate Muslim women's "hybrid right" of religious exercise coupled with religious expression. (379) The United States Supreme Court has consistently held that public school students have constitutionally protected rights to freedom of speech and religious expression. (380) In the seminal case concerning students' speech rights, Tinker v. Des Moines Independent Community School District (381) students wore black armbands on their sleeves to show their opposition to the Vietnam War. The students were suspended and not allowed to return to school as long as they wore the armbands. Ruling in the students' favor, the Supreme Court held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (382) In other cases, the Court has held that a school cannot censor student expression because of its religious content unless the school can demonstrate that the speech causes a material disruption in the school's normal operations, violates the rights of others, is vulgar, or advocates unlawful conduct. (383)

Moreover, school officials "cannot suppress expressions of feelings with which they do not wish to contend" (384) or "prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (385)

These principles were tested when a Southern California school district allowed Sikh students to carry dagger-like blades called a kirpan. The kirpan is one of five sacred articles that baptized Sikhs must wear. The students in the Jurupa Unified School District were allowed to wear the approximately 2-inch knives at school after their parents agreed to solder them or sew them into the sheaths so they could not be used as weapons. (386)

In another school district, the dress code was interpreted to bar gang-related apparel, but it did not define "gang-related." The students were told that they could not wear Catholic rosaries because the school had identified rosaries as gang-related apparel. Students sued the school in Chalifoux v. New Caney Independent School District, (387) claiming the dress code infringed upon their free exercise rights. To prevail in Chalifoux, the school district was obligated to produce evidence showing that wearing religious garb would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school" or "impinge upon the rights of other students." The court found that not only did the school district fail to satisfy its burden, but the rosaries were worn for bona fide religious purposes. The ban as applied did not "bear more than a reasonable relation" to regulating gang activity and placed an "undue burden" on the students. (388)

A dispute involving Islamic headscarves arose when Nashala Hearn, an eleven year-old sixth-grade student, was ordered to remove her hijab. (389) Hearn continued to wear a hijab and was suspended twice for doing so. The family appealed but the suspensions, were upheld by the school district. (390) Hearn's parents filed suit and presented evidence that showed the district had granted exceptions to the ban on head coverings for costumes worn during school plays. During legal proceedings, the United States Justice Department intervened on Hearn's behalf and argued the district violated the Equal Protection Clause of the Fourteenth Amendment. (391) The United States argued that

   the policy is subject to ad hoc exceptions for various secular
   head coverings and thus is not generally applicable; the policy
   burdens Nashala's "hybrid right" of religious exercise coupled
   with religious expression; and the policy has been enforced
   against Nashala on a discriminatory basis because of her
   particular religious faith, and thus is not religion-neutral. (392)

The Department of Justice settled the lawsuit under a consent agreement in which the school district allowed Hearn to wear headscarves and agreed to revise its dress code to accommodate religious exceptions. (393)

These American examples show that France's fear of Muslim attire is overblown. The most likely reason for France's ban on headscarves and burqas is the negative reaction by many French citizens to the growing Muslim population in that country. To many French citizens, Islamic clothing represents a rejection of French tradition of assimilation. The American cases show that females wearing headscarves in schools do not interfere with the requirements of appropriate discipline in the operation of public schools or impinge on the rights of other students. Headscarves are worn for bona fide religious purposes. The current French ban on headscarves imposes an undue burden on Muslim female students' of what in America would be the "hybrid right" of religious exercise and religious expression. The same reasoning should be extended to allow the wearing of burqas in public. (394)


The controversy concerning conflicts with "immigrants" is based on growing number of Muslims in France and their desire to observe their religious customs. Many French citizens fear that Muslims will undermine their values and traditions. The Islamic veil is perceived as a potent symbol of that threat. The French government apparently believes Islamic head coverings jeopardize the health and safety of French citizens and banning them will eliminate that threat. These fears are exaggerated.

French law-makers should recognize that the question of whether Islamic tenets require all Muslim women to wear headscarves is the subject of differing interpretations. Islamic scholars, feminist scholars, and others continue to debate the question of whether headscarves are compulsory. (395) The word hijab, refers to the practice of modest dress for men and women. It can be traced to four verses in the Qur'an. (396) Verse 24.31 states, for example:

   And tell the believing women to reduce [some] of their vision
   and guard their private parts and not expose their adornment
   except that which [necessarily] appears thereof and to wrap [a
   portion of] their headcovers over their chests and not expose
   their adornment except to their husbands, their fathers, their
   husbands' fathers, their sons, their husbands' sons, their
   brothers, their brothers' sons, their sisters' sons, their women,
   that which their right hands possess, or those male attendants
   having no physical desire, or children who are not yet aware of
   the private aspects of women. And let them not stamp their feet
   to make known what they conceal of their adornment. And
   turn to Allah in repentance, all of you, O believers, that you
   might succeed. (397)

Similarly, Verse 33.59 states, "O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused." (398) Many women wear headscarves based on their interpretation of the Qur'an and consider the practice to be an important symbol of their religious values and Islamic identity.

The critical, but unresolved question is whether scarves and burqas are worn as voluntary expressions of Islamic culture and faith or whether they are coerced by the expectations of a paternalistic society that demeans and devalues women. It would be problematic if the coverings are worn as a result of coercion by Islamic men since that would diminish the status and equality rights of women. One way to approach this debate is through the lens of Critical Race Feminism. (399) Mainstream feminism has not paid adequate attention to the roles of white men and women in the oppression of women of color. (400) Though it incorporates some elements of feminist jurisprudence, Critical Race Feminism's analytical perspective is primarily concerned with the oppression of women of color. (401) It addresses, among other things, the intersectionality of discrimination against nonwhite women, which can differ from discrimination experienced by white women or black men. (402)

The headscarf controversy is an example of this phenomenon. Muslim men in France have not been subjected to the stigmatizing and demeaning veil laws that are written in neutral terms but disproportionately impact Muslim women. White, non-Muslim women are not affected. The burden is borne mainly by Islamic women of color. Ethnicity, gender, national origin, and religion intersect to impose a category of discrimination unique to non-white, Muslim women in France. The laws' effect is more burdensome than discrimination based only on ethnic, gender, national origin, or religious considerations. Furthermore, there are no compelling justifications for the headscarf and veil laws. They are not reasonably related to any legitimate governmental interest. Headscarves and burqas do not pose a threat to safety or stability in France. Even assuming, arguendo, that veils are signs of "subservience," (403) they do not pose "a clear and present danger" to French society that would justify bans on religious customs and expressions. (404)

Many Western feminists contend that Islamic headscarves undermine gender equality. (405) Headscarves, they argue, reflect practices developed to maintain male dominance. (406) Even if women believe they want to wear headscarves, it is derived from a "false consciousness" as their self-perception and social roles are inculcated by socialization in a highly paternalistic culture. (407) In this context, scarves would be symbols of sexist oppression. (408) They can foster religious extremism and create divisions among Muslim women. (409)

Commenting on the question of headscarves in schools, scholars have argued that the educational environment should provide female students a means of escape from male domination rather than reproduce the patriarchy experienced at home. (410) They also contend that headscarves may inhibit Muslim schoolgirls' capacity to learn and integrate into mainstream French culture. (411) In opposition to this view, some Muslim feminists associate headscarf banning with colonialist policies of coerced cultural assimilation through prohibitions on indigenous cultural symbols, such as modes of dress. (412)

There are some who disagree with these views. Many Muslim women wear scarves and veils to freely express religious convictions and beliefs, display modesty in dress, comply with family values, or protect themselves from sexual harassment. (413) Some feminist scholars consider Western feminists' critiques of headscarf wearing to be essentialist value judgments reflecting stereotypical views of Muslim women. This interpretation presumes that Western values have a universal validity rather than being social, ideological, or intellectual constructs. This does not recognize the diversity of cultural practices within Islam. (414) Some Western feminists argue that Western scholarship on Eastern cultures is produced by an Orientalist framework that is distorted by unconscious cultural biases. (415) These scholars believe that reserve and restraint in dress are not always coerced. Rather than reflecting a passive submission to the Islamic community, the headscarf can express an active interest in religious scripture. (416) For many, wearing scarves is a gesture that reaffirms a commitment to Islamic morality and identity. (417) Scholars also argue that a headscarf allows the wearer to interact with society without feeling that she is being perceived as a sexual object. (418) In Western countries, the headscarf can be a politically empowering means of expressing disagreement with Western culture and its sexualization of women. (419) For many Muslim women, headsearves function as a means of cultural identification that is more important than scholarly concerns about its gender implications. (420)

The ways in which Muslim women understand the wearing of headsearves present only a few of the intricate, multilayered, and nuanced questions that scholars will continue to debate. However, it is not necessary to resolve the debate to determine that the French veil laws are problematic. The French government should not have interfered with the religious practices of Muslim women simply because those practices are perceived to violate the French Republic's "idea of women's dignity." The motives for wearing headsearves and burqas vary widely among individual women, ranging from voluntary religious expression, to family obligation, to bold political statement. Whatever the motivation may be for wearing burqas or headsearves, a democratic nation such as France should not impose itself as the arbiter of those decisions. Islamic women should have the freedom and autonomy to make individual choices about their modes of dress without interference from others.


In a 2014 New York Times commentary, an American professor living in Paris recounted an eye-opening experience into French attitudes about race. A taxi driver told the professor as they passed through a black neighborhood, "I hope you got your shots. You don't need to go to Africa anymore to get a tropical disease." (421) Casual comments like this confirm that the immigration debate is as much about race and ethnicity as it is about national origin. The labeling of second- and third-generation Maghrebis as "immigrants" shows that they are not considered French, even though they were born there and are French citizens. Since the mid-1970s, immigration has been an emotionally charged issue in French elections with politicians seeking elective offices exploiting the issue for political gain.

Immigrants from North and sub-Saharan Africa have been crowded into public housing in banlieues located along the perimeters of French cities. They contain high concentrations of low-income families. Crime is high and the schools are often substandard. Young men are the targets of relentless police harassment. Tensions between police and banlieuesards have resulted in countless minor disturbances and a number of major riots.

The children of immigrants perform at a lower academic level than those of native-French schoolchildren. Teachers often assume that the children of immigrants cannot perform at an adequate academic level and view such students as disruptive. Surveys show that teachers focus on the behaviors of immigrant students rather than their academic ability.

Ethnic minorities also suffer from discrimination in the labor markets. They are relegated into the lowest paying and least desirable occupations, if they are hired at all. The "ethnic penalty" results in high levels of unemployment among ethnic minorities. Though several antidiscrimination laws prohibit employment discrimination, studies have shown that the laws are not very effective in protecting ethnic minorities from discriminatory practices.

To many French citizens, headscarves and burqas represent an existential challenge to French identity. In reality, however, scarves have never posed any real threat to the safety or stability of France. Communalism, the apparent rejection of French Republicanism, and the mistreatment of some Muslim women by their male relatives provided a convenient excuse to outlaw religious dress in public spaces. In banishing head coverings from schools and public spaces, France effectively attempted to isolate, denigrate, and marginalize Islamic immigrants. The French approach to policymaking may be cast in race neutral terms, but it has a disproportionate impact on Muslim women. The French government knew this would be the effect of the laws. They are thinly veiled efforts to punish Muslim women for practicing their religion. This sort of color-blind racism has long been a harsh reality for ethnic minorities in France.

(1.) Eduardo Bonilla-Silva, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States 26 (2003) (discussing color-blind racism in the United States).

(2.) Alex G. Hargreaves, Multi-Ethnic France: Immigration, Politics, Culture and Society 16 (2d ed. 2007); Kimberly Hamilton, Patrick Simon & Clara Veniard, The Challenge of French Diversity (Nov. 1, 2004), challenge-french-diversity [hereinafter The Challenge]; Shane Cooke, France for the French: A History of French Immigration Policy, YouTUBE (Apr. 23, 2013), watch?v=idvK6r97ZIg.

(3.) Cathy Lisa Schneider, Police Power and Race Riots in Paris, 36 Pol. & Soc'y 133, 141 (2008).

(4.) Id.

(5.) Id.

(6.) Id.

(7.) Id.

(8.) Id.

(9.) Quentin Duroy, North African Identity and Racial Discrimination in France: A Social Economic Analysis of Capability Deprivation, 69 REV. Soc. ECON. 307, 315 (2011).

(10.) Id.; Ellen Wiles, Headscarves, Human Rights, and Harmonious Multicultural Society: Implications of the French Ban for Interpretations of Equality, 41 Law & SOC'Y REV. 699, 704 (2007).

(11.) Paul Halsall, Jules Ferry (1832-1893): On French Colonial Expansion, MODERN History Sourcebook (July 1998),

(12.) Duroy, supra note 9, at 315-16.

(13.) Id. at 316; Gary Wilder, Panafricanism and the Republican Political Sphere, in THE Color of Liberty: Histories of Race in France 237, 245 (Sue Peabody & Tyler Stovall eds., 2003); see generally Albert Memmi, The Colonizer and the Colonized (1957) (examined the adverse psychological effects of colonialism on indigenous populations and European colonials)

(14.) Wiles, supra note 10, at 702.

(15.) Duroy, supra note 9, at 316.

(16.) Id.

(17.) HARGREAVES, supra note 2, at 17.

(18.) Id. at 23.

(19.) Id. at 19.

(20.) Id. at 20; The Challenge, supra note 2.

(21.) Id. at 19-20; see also The Challenge, supra note 2.

(22.) The Challenge, supra note 2; HARGREAVES, supra note 2, at 20."

(23.) HARGREAVES, supra note 2, at 20

(24.) Id.

(25.) Id.; Leland Ware, A Comparative Analysis of Unconscious and Institutional Discrimination in the United States and Britain, 36 Ga. J. Int'l & COMP. L. 89 (2007).

(26.) HARGREAVES, supra note 2, at 20.

(27.) Eloisa Vladescu, The Assimilation of Immigrant Groups in France--Myth or Reality?, 5 Jean monnet/Robert Schuman Paper Series 1, 4 (2006), available at http://www6.

(28.) David Birmingham, The Decolonization of Africa 1 (David Birmingham ed., Taylor & Francis e-Library, 2009) (1995), available at 2011/11/ebooksclub-org_the_decolonization_of_africa3.pdf.

(29.) Birmingham, supra note 28, at 12.

(30.) Matthew Connelly, a Diplomatic Revolution: Algeria's Fight for Independence and the Origins of the Post-Cold War Era 3-4 (2003); Alistar Horne, A Savage War of Peace: Algeria 1954-1962 480 (2006).

(31.) CONNELLY, supra note 30, at 3-4.

(32.) Id.

(33.) Id.

(34.) Jim House, The colonial and post-colonial dimensions of Algerian migration to France, History in Focus, Migration, UNIV. LONDON INST. HISTORICAL RESEARCH: HISTORY IN FOCUS (Autumn, 2006), available at house.html; see also Igor Film & Casbah Film, The Battle of Algiers, YouTUBE (1966), (portraying the events that occurred in Algeria's capital city between November 1954 and December 1957 during the Algerian War of Independence).

(35.) France still retains some overseas possessions known as the "DOM-TOM." These include Guadalupe, Martinique, and French Guyana in the Caribbean and Reunion in the Indian Ocean. Individuals residing in these territories are French citizens. From 1972 the African immigrant population grew from 2.4 percent in 1979 to 9 percent in 1999. Asian populations went from 3.6 to 12.7 percent during the same period. Prior to World War II, many Magrhebis worked for a few years in France and then returned to their countries of origin. Audrey Celestine, French Caribbean Organizations and the 'Black question' in France, 4 Afr. & Black Diaspora: Int. J. 131, 132 (2011); Virginie Guiraudon, Immigration Policy in France, The BROOKINGS INST. (July 2001), 0101 france-guiraudon; HARGREAVES, supra note 2, at 21

(36.) Joan Wallace Scott, Politics of the Veil, 42-90 (2007)

(37.) Edward W. Said, Orientalism 21 (1978); Edward W. Said, Culture and Imperialism 317 (1994).

(38.) Historically the "Orient" referred to countries east of the Mediterranean. SAID, ORIENTALISM, supra, note 37, at 1. It denoted a distinction between western nations and those in northern Africa and Asia. "Orientalism" was originally a term used by art historians and other scholars to categorize depictions of Middle Eastern and East Asian cultures by artists and writers from the West. Christine Peltre, Orientalism in Art 14 (Jacqueline Decter ed., John Goodman trans., 1998).

(39.) A major component of French culture is the conviction that its culture is superior to those of all non-Europeans. SAID, ORIENTALISM, supra note 37, at 39. See also Matthew Olmsted, Are Things Falling Apart? Rethinking the Purpose and Function of International Law, 27 LOY. L.A. Int'l. & COMP. L. REV. 401, 407 (2005); William Lafi Youmans, Edward Said and Legal Scholarship, 3 UCLA J. ISLAMIC & NEAR E.L. 107, 110 (2003 2004); see generally Frantz Fanon, A Dying Colonialism (Haakon Chevalier trans., 1965).

(40.) Said, Orientalism, supra note 37, at 39-40. Scott, supra note 36, at 49-57.

(41.) Said, Orientalism, supra note 37, at 39-49.

(42.) Id.

(43.) TODD PORTERFIELD, THE ALLURE OF EMPIRE: ART IN THE SERVICE OF FRENCH Imperialism 1798 1836, 132-34 (1998); Jennifer Meagher, Orientalism in Nineteenth-Century Art, The Metropolitan Museum of Art, hd_euor.htm (last visited Sept. 14, 2014).

(44.) PORTERFIELD, supra note 43, at 53-58.

(45.) Laurel Ma, The Real and Imaginary Harem: Assessing Delacroix's Women of Algiers as an Imperialist Apparatus, 19 PENN Hist. Rev. 9 (2011).

(46.) James M. Jones, Prejudice and Racism 425-28 (Beth Kaufman & Larry Goldberg eds., second ed., 1997); Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. PERSONALITY & Soc. PSYCHOL. 1464, 1473-74 (1998); Cheryl Staats with contributions from Charles Patton, Kirwan Inst. for the study of race and ethnicity, implicit bias review 2013 (2013), http:// Bias.pdf [hereinafter IMPLICIT BIAS REVIEW] (contains a comprehensive review of the relevant literature).

(47.) Susan T. Fiske, Intent and Ordinary Bias: Unintended Thought and Social Motivation Create Casual Prejudice, 17 SOC. JUST. RES. 117, 122 (2004); Susan T. Fiske, Examining the Role of Intent: Toward Understanding Its Role in Stereotyping and Prejudice, in UNINTENDED THOUGH, 253, 253-83 (James S. Uleman & John A. Bargh eds., 1989)

(48.) Implicit Bias Review, supra note 46. Professor Frances Aboud, who conducted research on prejudice in young children, found that stereotypes develop between the ages of three and five. Frances E. Aboud & Maria Amato, Developmental and Socialization Influence on Intergroup Bias, in INTERGROUP Processes 65 (Rupert Brown & Samuel Gaertner eds., 2003).

(49.) Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. REV. 1241, 1246-50 (2002).

(50.) Blasi, supra note 49.

(51.) Id.

(52.) Robert L. Hayman Jr. & Leland Ware, The Geography of Discrimination: The Seattle and Louisiana Cases and the Legacy of Brown vs. Board of Education, in CHOOSING Equality: Essays and Narratives on the Desegregation Experience 312, 326 (Robert L. Hayman Jr. & Leland Ware eds., 2009); JAMES M. JONES, PREJUDICE AND Racism, 10-11, (McGraw-Hill 2nd ed. 1997). Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Calif. L. Rev. 733, 741-55 (1995); Tristin K., Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.-C.L. L. Rev. 91, 93 (2003).

(53.) SCOTT, supra note 36, at 55-60.

(54.) Id. at 49-60.

(55.) Id.

(56.) Id.

(57.) Id. at 49-50.

(58.) Id. at 49.

(59.) Dana S. Hale, French Images of Race on Product Trademarks During the Third Republic, in The Color of Liberty, Histories of Race in France 131-46 (Sue Peabody & Tyler Stovall eds., 2003).

(60.) SCOTT, supra note 36, at 50.

(61.) Id. at 49-60.

(62.) Id.

(63.) See, e.g., Alexandra Jopp, Romantic Orientalism: The Harem, available at

(64.) Meagher, supra note 43.

(65.) Id.

(66.) Scott, supra note 36, at 55-61; Malek Alloula, The Colonial Harem, 3-7 (1986); French Orientalism: Culture, Politics and the Imagined Other 204 (Desmond Hosford & Chong J. Wojtkowski eds., 2010).

(67.) See generally MALEK ALLOULA, supra note 66.

(68.) See generally id.

(69.) Women and the Colonial Gaze 1-16 (Tamara L. Hunt & Micheline R. Lessard eds., 2002) (examining gender, imperialism, and the ways in which colonizers used images of women to define colonial relationships); see generally Zachary LOCKMAN, CONTENDING Visions of the Middle East: The History and Politics of Orientalism (Eugene L Rogen ed., 2004); see generally VISIONS OF THE EAST: ORIENTALISM IN Film (Matthew Bernstein & Gaylyn Studlar eds., 1997).

(70.) SCOTT, supra note 36, at 46-47.

(71.) See infra Part VII.

(72.) See infra Part VII.

(73.) See infra Part IX.

(74.) SCOTT, supra note 36, at 52.

(75.) Schneider, supra note 3, at 144.

(76.) Alex Felton, Too Many Immigrants in France, Sarkozy Says, CNN (Mar. 7, 2012, 11:52 PM),; Joseph Bamat, Too Many Immigrants in France, Says Ex-PM Fillon, FRANCE 24 (June 7, 2013), http://; Ben McPartland, 'Too Many Foreigners in France', French say, THE Local (Jan. 25, 2013, 7:35 PM),

(77.) McPartland, supra note 76.

(78.) The Challenge, supra note 2.

(79.) Review: Sarah Wilson Art, Artefact, and Empire? Thirty Glorious Years in France Oxford Art 7(2013) 36 (2): 310-312

(80.) Hamilton, Simon & Veniard, supra note 2.

(81.) The Regents of the Univ. of Cal., 1973-74 Oil Crisis, The Bancroft Libr. (Mar. 7, 2011),

(82.) Sybille Rcgout, The Integration of Immigrant Communities in France, the United Kingdom and the Netherlands: National Models in a European Context 24 (Migration Studies Working Papers No. 2011/09, 2011), available at resgroups/MSU/documents/workingPapers/WP_2011_09.pdf.

(83.) Id.; see also HARGREAVES, supra note 2, at 24-25.

(84.) HARGREAVES, supra note 2. at 24-25.

(85.) Id. at 25.

(86.) Id. at 25-26.

(87.) Id. at 26.

(88.) Id.

(89.) Id. at 28,

(90.) Id. at 28-29.

(91.) Id.

(92.) Id. at 30; Roya Hajbandeh, "France, Love It or Leave It": New French Law Restricts Family Reunification, 27 WIS. INT'L L.J. 335, 338-40 (2009).

(93.) Paul Hainsworth, The Extreme Right in France: The Rise and Rise of Jean-Marie Le Pen's Front National, 40 Representation 101, 105-06 (2004); see generally Jonathan Marcus, The National Front and French Politics: The Resistible Rise of Jean-Marie Le Pen (1995); Peter Davies, National Front in France: Ideology, Discourse and Power (1999).

(94.) Hainsworth supra note 93.

(95.) Id.

(96.) Id. at 107; Mustafa Dikec, Badlands of the Republic: Space, Politics and Urban Policy 57 (2007).

(97.) Hajbandeh, supra note 92, at 338; MARCUS, supra note 93.

(98.) HAINSWORTH, supra note 93, at 106; see also Marcus, supra note 93; DAVIES, supra note 93.

(99.) Hainsworth, supra note 93.

(100.) See generally id.

(101.) Brenna Daldorph, Historically, Voters Don 7 Follow the Front National's Advice, LE FIGARO (Apr. 26, 2012, 11:37 AM), advice-20120426-905492 (this is the internet cite)

(102.) Virginie Guiraudon, Immigration Policy in France: U.S.-France Analysis, The BROOKINGS INST. (Jan. 01, 2002), france-guiraudon.

(103.) Id.

(104.) See generally Regout, supra note 82, at 25. The loi Bonnet is named after Christian Bonnet, Minister of the Interior from 1977 to 1981. Regout, supra note, 82, at 25.

(105.) Regout, supra note, 82, at 25.

(106.) Id. at 25-26.

(107.) Hajbandeh, supra note 92, at 338.

(108.) Id. at 339.

(109.) Regout, supra note 82, at 26.

(110.) Id.

(111.) Kara Murphy, France's New Law: Control Immigration Flows, Court the Highly Skilled, Migration Information Source (Nov. 2006), feature/display.cfm?ID=486.

(112.) Murphy, supra note 111.

(113.) Id. at 3.

(114.) Michele Tribalat, An Estimation of the Foreign-Origin Populations of France in 1999, 59(1) Population, 49 (2004) (Fr.).

(115.) The French capital is often referred to as "La Ville-Lumiere" ("The City of Light"). The name is said to come from its reputation as a center of education and ideas during the Age of Enlightenment. See e.g., Mary McAuliffe Paris Discovered: Explorations in the City of Light (2006).

(116.) Trica Danielle Keaton, Muslim Girls and the Other France: Race, Identity POLITICS AND SOCIAL EXCLUSION (2006); see also Keith Richburg, The Other France, Separate and Unhappy, WASH. POST (Nov. 13, 2005), dyn/content/article/2005/11/11/AR2005111102277.html.

(117.) Sylvie Tissot, "French Suburbs": A New Problem or a New Approach to Social Exclusion? 2 (Ctr. for European Studies, Working Paper Series No. 160, 2008), available at 60-tissot-frenchSuburbs.pdf (2008).

(118.) Sophie Gonick, Disciplining the Metropolis: Grand Paris, Immigration and the Banlieue, 24(1) Berkeley Plan. J. 26, 30 (2011).

(119.) Azouz Begag, SHANTYTOWN Kid (Alec G. Hargreaves ed., Naima Wolf & Alec G. Hargreaves, trans., Univ. of Neb. Press) (2007); Gonick, supra note 118, at 29-30.

(120.) Gregory Verdugo, Public Housing and Residential Segregation of Immigrants in France, 1968 1999, (Inst. for the Study of Labor, Discussion Paper No. 5456, 201]).

(121.) See generally id. at 10.

(122.) Id.

(123.) Id.

(124.) Tissot, supra note 117, at 2.

(125.) Denis Fougere et al., Social Housing and Location Choices of Immigrants in France 4 (Inst. for the Study of Lab., Discussion Paper No. 5557, 2011), available at dp5557.pdf.

(126.) Id.

(127.) Paul A. Silverstein & Chantal Tetreault, Postcolonial Urban Apartheid, in RIOTS IN FRANCE Web ESSAYS, SSRC.ORG (June 11, 2006), Tetreault [hereinafter Postcolonial Urban Apartheid]

(128.) Id.

(129.) Id.

(130.) Gonick, supra note 118.

(131.) Postcolonial Urban Apartheid, supra note 127, at 3.

(132.) Id.

(133.) Id.

(134.) Alexi Ferster Marmot, The Legacy of Le Corbusier and High-Rise Housing, 7 BUILT Env't 82, 84-85 (1981). The most famous of these buildings, also known as Cite radieuse is located in Marseille, France. It was constructed between 1947 and 1952. It was internationally influential and was used as a model for designing public housing projects in Europe and America. Id. at 89-93.

(135.) Id. at 88.

(136.) Id. at 85; see also Alexander Gorlin, The Ghost in the Machine: Surrealism in the Work of Le Corbusier, 18 PERSPECTA 50-65 (1982), available at 1567035. Other photographic depictions can be found at the Le Corbusier foundation's website sLanguage-en-en&itemPos=58&itemCount=78&sysParentld=64&sysParentName=home.

(137.) Le Corbusier was hailed as a visionary designer and urban planner, but found his designs problematic for the well-being of the residents. In 1947, a delegation from Glasgow, Scotland, visited Marseilles to observe the tower blocks designed by Le Corbusier. A high-rise policy was subsequently implemented in Glasgow. Many of the developments quickly deteriorated into dingy, ill-kempt dwellings that contributed to the occupants' social exclusion. Id.; Post War Housing, Welcome to Glasgow, articleid=3471 (last visited Sept. 4, 2014). Le Corbusier's grand vision of lifting workers from unsanitary shantytowns resulted in the created of desolate and dangerous high rise slums. As Witold Rybczyski explained, "[Le Corbusier] called it La Ville Radieuse, the Radiant City. Despite the poetic title, his urban vision was authoritarian, inflexible and simplistic. Wherever it was tried--in Chandigarh by Le Corbusier himself or in Brasilia by his followers--it failed. Standardization proved inhuman and disorienting. The open spaces were inhospitable; the bureaucratically imposed plan, socially destructive. In the United States, the Radiant City took the form of vast urban-renewal schemes and regimented public housing projects that damaged the urban fabric beyond repair. Today these megaprojects are being dismantled, as superblocks give way to rows of houses fronting streets and sidewalks. Downtowns have discovered that combining, not separating, different activities is the key to success. So is the presence of lively residential neighborhoods, old as well as new. Cities have learned that preserving history makes a lot more sense than starting from zero. It has been an expensive lesson, and not one that Le Corbusier intended, but it too is part of his legacy." WITOLD Rybczynski, Le Corbusier, in People ok the Century: One Hundred Men and Women Who Have Shaped the Last One Hundred Years 131 (1999).

(138.) See generally Fougere, supra note 125, at 4.

(139.) See generally id.

(140.) Jocelyne Cesari, Ethnicity, Islam, and les banlieues: Confusing the Issues (Nov. 30, 2005), available at

(141.) Id.

(142.) Id.

(143.) Id.

(144.) Id.

(145.) Postcolonial Urban Apartheid, supra note 127; see generally Graham Murray, France: the Riots and the Republic, Al Race AND Class 26, 30-31 (2006).

(146.) Postcolonial Urban Apartheid, supra note 127.

(147.) Id.

(148.) Id.; Yvonne Yazbeck et al. The October Riots in France: A Failed Immigration Policy or the Empire Strikes Back? 44 Int'l Migration 27 (2006).

(149.) Verdugo, supra note 120 at 11.

(150.) Id.

(151.) Id.

(152.) Id.

(153.) Id.

(154.) Gonick, supra note 118, at 30-31.

(155.) Id.

(156.) An index of dissimilarity is a measure from 0 to 1, in which higher numbers indicated more segregation between two groups. This measure computes the sum total in a larger area of the differences in the relative populations in subareas. Racial RESIDENTIAL SEGREGATION MEASUREMENT PROJECT, Racial Segregation: What it is And How We Measure It, (last visited Sept. 2, 2014).

(157.) Laurent Gobillon & Harris Selod, The Effects of Segregation and Spatial Mismatch on Unemployment: Evidence From France, NAT'L Inst. of STATISTICS & ECON. Stud. 1, 7 (2007), available at

(158.) Id. at 7.

(159.) Id.

(160.) Kathleen Scanlon & Christine Whitehead, French Social Housing in an International Context 5 (OECD Economics Department, Working Paper No. 862, 2011), available at

(161.) Id.

(162.) Id. at 8.

(163.) Id.

(164.) Id.

(165.) Matthew Moran, Opposing Exclusion: The Political Significance of the Riots in French Suburbs (2005-2007), 19 MODERN & CONTEMP. Fr. 297, 303 (2011).

(166.) Id. (citing HARGREAVES, supra note 2, at 26).

(167.) Moran, supra note 165, at 303-04.

(168.) Moran, supra note 165, at 303-04.

(169.) Loic Wacquant, Urban Outcasts: A Comparative Sociology of Advanced Marginality 3-4 (2008).

(170.) Id. at 5.

(171.) Id.

(172.) Paul Silverstein, Algeria in France: Transpolitics, Race, and Nation 78 (2004). There may changes on the way for some neighborhoods. Mira Ksamdar, Editorial, The Other Paris, Beyond the Boulevards, N.Y. TIMES (Nov. 9, 2013), http://www.nytimes. com/2013/11/10/opinion/sunday/the-other-paris-beyond-the-boulevards.html?ref=opinion. A New York Times essay, The Other Paris, Beyond the Boulevards, was written by an author who resides in Pantin, where the northeastern banlieues begin. Id. Many of her neighbors are immigrants from Africa, South Asia, China, and Vietnam. Others are Poles, Ukrainians, Russians, and Serbs. Id. She observed that the old mills in Pantin have been transformed into offices for the banking giant BNP Paribas. Id. Chanel placed its headquarters nearby and Hermes purchased several blocks for new ateliers. Id. Apartment buildings are being constructed with units reserved for affordable housing and canal-side cafes. Id. A Chinese supermarket and a high-end art gallery opened in an old warehouse. Id. Ksamdar suggests that "the future of this great city is on its periphery" because it is rapidly gentrifying and the housing is far more affordable than it is in Paris.... Id.

(173.) Albert Camus, available at index.html.

(174.) Postcolonial Urban Apartheid, supra note 127; Ahmed Boubeker, The outskirts of politics: The struggles of the descendants of postcolonial immigration in France, 24 FRENCH Cultural Studies 184, 186 (2013).

(175.) Postcolonial Urban Apartheid, supra note 127.

(176.) Mustafa Dikec, BADLANDS OF THE REPUBLIC: SPACE. POLITICS, AND URBAN POLICY, 43-48 (2007) (citing Adil Jazouli, Les annees banlieues (1992)).

(177.) Boubeker, supra note 174, at 187.

(178.) Id.

(179.) Id.

(180.) Id.

(181.) Id.

(182.) SILVERSTEIN, Algeria IN FRANCE, supra note 172, at 160-66.

(183.) Id.

(184.) Id.

(185.) Erik Bleich et al., Stale Responses to 'Ethnic Riots' in Liberal Democracies: Evidence from Western Europe, 2 EUR. POL. SCI. REV. 269, 284 (2010).

(186.) Id.

(187.) Id.

(188.) Id.

(189.) Patrick McDowell, Youth Suspected of Riot Dies in Police Custody, THE Assoc. PRESS, May 27, 1991, 870c5a96c110358b1028cddfd33c170c; Postcolonial Urban Apartheid, supra note 127, at 3.

(190.) Postcolonial Urban Apartheid, supra note 127.

(191.) Id.

(192.) Id.

(193.) Id.

(194.) Id.

(195.) Id.

(196.) Id.

(197.) Id.

(198.) Id.

(199.) Id.

(200.) Schneider, supra note 3, at 134-36; Bleich, supra note 185, at 286.

(201.) Id. at 135.

(202.) Id.

(203.) Id.

(204.) Id.

(205.) Id.

(206.) Id.

(207.) Id.

(208.) Id.

(209.) French Riots, BBC (Nov. 14, 2005),; Fresh Violence Hits Paris Suburbs, BBC (Nov. 3, 2005), 4401670.stm; Craig S. Smith, Immigrant Rioting Flares in France for Ninth Night, N.Y. TIMES (Nov. 5, 2005), wanted-all& r=0; French Riots Spread Beyond Paris, BBC (Nov. 4, 2005), uk/2/hi/europe/4405620.stm; Jonathan Laurence & Justin Vaisse, Understanding Urban Riots in France. BROOKINGS (Dec. 1, 2005), 12/01france-laurence; Keith Richburg, The Other France. Separate and Unhappy, Wash. POST (Nov. 12, 2005), 111102277.html.

(210.) Moran. supra note 165, at 301 (listing examples of French officials connecting "delinquents" with the cause of the riots).

(211.) Id. at 301.

(212.) Yvonne Yazbeck Haddad & Michael J. Balz, The October Riots in France: A Failed Immigration Policy or the Empire Strikes Back?, 44 INT'L MIGRATION 24, 24-30 (2006); Abbey C. Furlong, Cultural Integration in the European Union: A Comparative Analysis of the Immigration Policies of France and Spain, 19 TRANSNAT'L L. & CONTEMP. PROBS. 681, 689-90(2010);

(213.) Alec G. Hargreaves, An Emperor with No Clothes?, SSRC (Nov. 28, 2005), [hereinafter An Emperor); Schneider, supra note 3, at 137.

(214.) Schneider, supra note 3, at 137.

(215.) Id.

(216.) Id.

(217.) Opposing Exclusion, supra note 210.

(218.) Id. at 299-302.

(219.) An Emperor, supra note 213.

(220.) Id.

(221.) Id.

(222.) Id.

(223.) Id.

(224.) Id.

(225.) Report of the Nat'l. Advisory Comm. on Civil Disorders (Kerner Commission), (1968). available at

(226.) Kerner Commission, supra note 225.

(227.) Id.

(228.) Kerner Commission, supra note 225; See also LA HAINE (May 31, 1995) (film portrayal of police treatment of banlieusards); see also Matt Feeney, La Haine: The Film that Predicted the French Riots, SLATE (Nov. 11, 2005), dvdextras/2005/11/1a_haine.html (discussing La Haine).

(229.) Moran, supra note 165, at 305.

(230.) Id. at 305; Haddad & Balz, supra note 212, at 27.

(231.) Moran, supra note 165, at 305.

(232.) Id.; see also Assiya Hamza, France Struggles to Address Racial Profiling by Police, Fr. 24 (Oct. 4, 2013), hollande-black-arab ("Rights groups are calling for a system to monitor the number of individuals police stop on the street, as well as why they are stopped.").

(233.) France does not collect census or other data on the race or ethnicity of its citizens. Erik Bleich, Race Policy in France, BROOKINGS (May 5, 2001), available at http://www. A 1978 law banned the collection and storage of race-based data without the express consent of the interviewees or a waiver by a state committee. Id. Researchers use information on the number of foreigners and immigrants in France from the national census data, and second- and third-generation immigrant descendants has been estimated through survey data. David B. Oppenheimer, Why France Needs to Collect Data on Racial Identity ... In A French Way, 31 Hastings Int'l & COMP. L. REV. 735, 742 (2008); Rachel Holman, French Minority Advocates Call For Statistics on Diversity, FRANCE 24 (July 11, 2011), available at diversity-discrimination-aneld/; Bruce Crumley, Should France Count Its Minority Population? TIME (Mar. 24, 2009), available at world/article/0,8599,1887106,00.html.

(234.) For a compilation of French anti-discrimination laws see SOPHI RECHT, ANTIDISCRIMINATION Legislation in EU Member States (Jan Niessen & Isabelle Chopin eds., 2002), available at pdf.

(235.) Julie C. Suk, Equal by Comparison: Unsettling Assumptions of Antidiscrimination Law, 55 AM. J. COMP. L. 295 (2007) [hereinafter Equal by Comparison].

(236.) Suk, Equal by Comparison, supra note 235, at 312-18.

(237.) Id. at 302.

(238.) RAV v. City of St. Paul, 505 U.S. 377 (1992).

(239.) Suk, Equal by Comparison, supra, note 235 at 302.

(240.) Id.

(241.) Id.

(242.) Id. at 302-03.

(243.) Id. at 302.

(244.) Id. at 303.

(245.) Id.

(246.) Id. at 302-03.

(247.) Id. at 304.

(248.) Overview, U.S. Equal Emp. Opportunity Commission, (last visited Sept. 9, 2014).

(249.) Julie C. Suk, Procedural Path Dependence: Discrimination and the Civil Criminal Divide, 85 WASH. U. L. Rev., 1315, 1347 (2008) [hereinafter Procedural Path].

(250.) Id. (referencing Loi 2004-1486 du 30 decembre 1004 [Law No. 2004-1486 of December 30, 2004], Journal Officiel de la Republique Francaise [J.O.] [Official Gazette of France], Dec. 31, 2004, p. 22567).

(251.) Suk, Equal by Comparison, supra note 235, at 304.

(252.) Id. at 303 04.

(253.) Suk, Procedural Path, supra note 249, at 1332.

(254.) Id. at 1332-34.

(255.) Id.

(256.) Id.

(257.) Suk, Equal by Comparison supra, note 235, at 323; Alex G. Hargreaves, Half Measures: Anti Discrimination Policy in France, in Race in France: Interdisciplinary Perspectives on the Politics of Difference 227 (Herrick Chapman & Laura L. Fradereds., 2004).

(258.) Julie C. Suk, Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict, 60 Stan. L. Rev. 73, 105-06 (2007). On May 17, 2013, the French Parliament, supported by the ruling Socialist Party, adopted a bill to drop the word "race" from the country's laws. From now on, the word "racial," as well as "race," will be dropped from relevant articles of the French penal code or replaced by the word "ethnic." Harvey Morris, France Fights Racism by Outlawing "Race", N.Y. TIMES, (May 17, 2013), http://rendezvous.

(259.) HARGREAVHS, supra note 2, at 48.

(260.) Id

(261.) Id. at 41-54.

(262.) Id. at 44-48.

(263.) Id.

(264.) Id.

(265.) Id. at 44.

(266.) Id. at 48.

(267.) Id.

(268.) Id.

(269.) Id. at 43.

(270.) Id.

(271.) Id. at 44-48.

(272.) Roxanne Silberman & Irene Fournier, Second Generations on the Job Market In French: A Persistent Ethnic Penalty, in 49 REVUE Francaise DE SOCIOLOGIE 45, 51 (2008).

(273.) Laurent Gobillon, Harris Selod and Yves Zenou, The Mechanisms of Spatial Mismatch, 12 Urb. Stud. 2401, 2412 (2007).

(274.) Id.

(275.) E. Cediey and F. Foron, Discrimination in access to employment on grounds of foreign origin in France: A national survey of discrimination based on the testing methodology of the International Labour Office. International Labour Office, International Migration Programme.--Geneva: ILO, 67-78 (2008), available at public/--ed_protcct/--protrav/--migrant/documents/publication/wcms_201429.pdf.

(276.) Klaus F. Zimmermann ct al., Study on the Social and Labour Market Integration of Ethnic Minorities, Institute for the Study of Labor Research Report No. 16, 25--26 (Oct. 8, 2007),

(277.) Zimmerman et al., supra note 275.

(278.) Arnaud Lefranc, Unequal Opportunities and Ethnic Origin: The Labor Market Outcomes of Second-Generation Immigrants in France, 53 (12) AM. BEHAVIORAL SCIENTIST 1851, 1874(2010).

(279.) Lefranc, supra, note 278 at 1877.

(280.) Id.

(281.) Id.

(282.) Id.

(283.) Id.

(284.) E. Cediey & F. Foron, supra note 275, at 67-71.

(285.) Id. at 51-59.

(286.) Id. at 67-85.

(287.) Id.

(288.) Id.

(289.) Id.

(290.) See generally Dominique Meurs et al., The Persistence of Intergenerational Inequalities Linked to Immigration: Labour Market Outcomes for Immigrants and Their Descendants in France Population 61 (English Ed., 2002), 645-82 (2006), available at, 650-654, 674-675.

(291.) Meurs, Pailhe and Simon supra note 290.

(292.) Id.

(293.) Hector Cebolla Boado, Primary and Secondary Effects In the Explanation of Disadvantage in Education: The Children of Immigrant Families in France, 32 BRIT. J. SOC. EDUC. 407, 412 (May 2011); Yael Brinbaum & Hector Cebolla-Boado, The School Careers of Ethnic Minority Youth in France: Success or Disillusion? 7(3) ETHNICITIES 445, 449 (2007).

(294.) Danielle Ledford, Is Race Neutrality a Fallacy? A Comparison of the U.S. and French Models of Affirmative Action in Higher Education, 46 TEX. Int'l L.J. 355, 363-64 (2011).

(295.) Brinbaum & Cebolla-Boado, supra note 293, at 412-14.

(296.) Id

(297.) Id.

(298.) Id. at 413.

(299.) Id. at 414.

(300.) Id.

(301.) Id.

(302.) Id. at 450.

(303.) Id.

(304.) Id. at 463.

(305.) Id.

(306.) Id.

(307.) Id. at 414.

(308.) Id. at 427.

(309.) Id.

(310.) Id. at 464.

(311.) Id.

(312.) Id.

(313.) Id. at 464-65.

(314.) Id. at 464.

(315.) Michel Wieviorka, Violence in France (Nov. 18, 2005), Wieviorka/.

(316.) Id.

(317.) KEATON, supra note 116.

(318.) Id. at 24-25.

(319.) Id. at 113.

(320.) Id. at 127-56.

(321.) Id. at 37.

(322.) Id. at 157-92.

(323.) Id. 143-56.

(324.) Id.

(325.) Id. at 144. The problems of Meghrebian women in banlieues was explained in the book. Breaking The Silence: French Women's Voices From the Ghetto, which tells the story of the protests sparked by the death of Sohane Benziane, a 17-year-old of Algerian descent living in Vitry-sur-Seine, who was beaten, doused with an accelerant, and burned in full view of a gathered crowd. Fadela Amara & SYLVIA ZAPPI, Breaking THE SILENCE: FRENCH Women's Voices from the Ghetto 16, 36, 106 (Helen Harden Chenut trans., Univ. of Cal. Press 2006) (2003). On March 8, 2003, more than thirty thousand people gathered in the streets of Paris. Id. at 4, 35. An organization, Ni Putes, Ni Soumises ("Neither Whores nor Submissives"), was subsequently organized to protest the treatment of Maghrebien women in banlieues. Id. at 15-18.

(326.) Agnes van Zanten, Schooling Immigrants in France in the 1990s: Success or Failure of the Republican Model of Integration?, 28 ANTHROPOLOGY & EDUC. Q. 351, 366-67 (1997).

(327.) Agnes van Zanten, supra note 326, at 366.

(328.) Id.

(329.) Id.

(330.) Id.

(331.) Id.

(332.) Id.

(333.) Pierre Bourdieu & Jean-Claude Passeron, reproduction in education, Society and Culture 22 (1990).

(334.) See generally id.

(335.) Id.

(336.) Id.

(337.) C.M.A. McCauliff, Dreyfus, La Cite and the Burqua, 28 CONN. J. Int'l L. 117 (2012).

(338.) William Bristow, Enlightenment, in THE STANFORD ENCYCLOPEDIA OF Philosophy (June 2011), available at enlightenment.

(339.) C.M.A. McCauliff, supra note 337, at 119

(340.) Id.

(341.) Id.

(342.) Id.

(343.) Id. at 123-25; T. Jeremy Gunn, Religious Freedom and Laicite: A Comparison of the United Stales and France, 2004 BYU L. REV. 419, 433-39 (2004).

(344.) C.M.A. McCauliff, supra note 337, at 123-25.

(345.) Id. at 123.

(346.) Id.

(347.) Id.

(348.) Id.

(349.) SCOTT, supra note 36, at 99.

(350.) Id.

(351.) France: The Third Republic and the 1905 Law of Laicite, BERKLEY CTR. FOR RELIC, PEACE & World Affairs, available at law-of-em-laicite-em.

(352.) The three girls suspended were Leila Achaboun, Fatima Achaboun, and Samira Saidani. Scott, supra note 36, at 21-22; John R. Bowen, Why the French Don't Like Headscarves: Islam, the State, and Public Space 81 (2006); Nusrat Choudhury, From the Stasi Commission to the European Court of Human Rights: L 'affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 COLUM. J. GENDER & L. 199, 223-24; N.M. Thomas, On Headscarves and Heterogeneity: Reflections on the French Foulard Affair, 29 Dialectical Anthropology 373, 382 (2005).

(353.) The literature on the headscarf and burqa controversies in France is voluminous. See, e.g., Karima Bennoune, Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women's Equality Under International Law, 45 COLUM. J. Transnat'l L. 367 (2007); Patrick Weil, Why the French Laicity is Liberal, 30 Cardozo L. REV. 2699 (2009); Leora Bilsky. Uniforms and Veils: What Difference Does a Difference Make?, 30 CARDOZO L. REV. 2715 (2009); Cyra Akila Choudhury, Empowerment or Estrangement: Liberal Feminism's Visions of the "Progress" of Muslim Women, 39 U. Balt. L.F. 153 (2009); Reuven (Ruvi) Ziegler, The French Headscarves Ban: Intolerance or Necessity?, 40 J. Marshall L. Rev. 235 (2006); Gunn, supra note 343; Melanie Adrian, Laicite Unveiled: A Case Study in Human Rights, Religion, and Culture in France, I HUM. RTS. Rev. 102 (2006); Alia Al-Saji, The Racialization of Muslim Veils: A Philosophical Analysis, 36(8) Phil. & Soc. CRITICISM 875 (2010); Trica Keaton, Arrogant Assimilationism: National Identity Politics and African-Origin Muslim Girls in the Other France, 36 ANTHROPOLOGY & EDUC. Q. 405 (2005); Alison Dean, Comment, Unveiling the Right to Take Part in Cultural Life: The Effect of General Comment No. 21 on the Legality of the French Burqa Ban, 26 Am. U. Int'l L. Rev. 1437 (2011); Britton D. Davis, Lifting the Veil: France's New Crusade, 34 B.C. Int'l & Comp. L. Rev. 117 (2011); Oriana Mazza, Note, The Right to Wear Headscarves and Other Religious Symbols in French, Turkish and American Schools: How the Government Draws the Veil on Free Expressions of Faith, 48 J. Cath. Leg. Stud. 303 (2009); Jennifer M. Westerfield, Behind the Veil: An American Legal Perspective on the European Headscarf Debate, 54 AM. J. COMP. L. 637 (2006).

(354.) The Conseil d'Etat is one of three high tribunals in France. The other two are the Cour de Cassation, the highest court for appeals involving private parties, and the Conseil Constitutiormel, which decides the constitutionality of laws under consideration by the parliament. These courts serve appellate functions that the Supreme Court performs in the United States. Elisa T. Beller, The Headscarf Affair: The Conseil d'Etat on the Role of Religion and Culture in French Society; 39 Tex. Int'l L.J. 581, 584 (2004).

(355.) Bronwyn Winter, Hijab & The Republic: Uncovering the French Headscarf Debate 168 (2009).

(356.) Id. at 138; see also Weil, supra note 353, at 2700.

(357.) See infra Part X for discussion of the freedom of religion and expression under the First Amendment of the United States Constitution are discussed.

(358.) Wiles, supra note 10, at 701-02; Nusrat Choudry, From the Stasi Commission to the European Court of Human Rights: L 'Affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 Colum. J. Gender & L. 199, 229 (2007).

(359.) See, e.g., Keaton, Arrogant Assimi/ationism, supra note 253, at 417 (2005); Youssef M. Ibrahim, Arab Girls' Veils at Issue in France, N.Y. TIMES, Nov. 12, 1989, at L5, available at http://www.nytimes.eom/1989/11/12/world/arab-girls-veils-at-issue-in-france.html; Talal Asad, French Secularism and the "Islamic Veil Affair", 8 The HEDGEHOG Rev. 93, 93 (2006).

(360.) Choudry, supra note 358, at 231-32.

(361.) Id.

(362.) Id. at 232.

(363.) Commission De Reflexion Sur L'application Du Principe de Laicite Dans la Republique, Rapport Au President De La Republique (2004), translated in Robert O'Brien, The Report of the Committee of Reflection on the Application of the Principle of Secularity in the Republic (2005).

(364.) Ziegler, supra note 353, at 240.

(365.) Id.

(366.) Weil, supra note 353, at 2701.

(367.) Id. at 2699.

(368.) The War of the Headscarves, The Economist (Feb. 7, 2004), available at

(369.) Peter Allen, Burka rage as female lawyer rips veil off Muslim woman in French clothes shop, MAIL ONLINE (Oct. 14, 2010), Burka-ragc-female-lawyer-rips-veil-Muslim-woman-French-clothes-store.html.

(370.) Id

(371.) Davis, Lifting the Veil, supra note 353, at 118.

(372.) Sarkozy speaks out against burka, BBC News (June 22, 2009), 2/hi/europe/8112821.stm.

(373.) Tony Cross, France's burka bill--background to a bitter debate, RFI (June 1, 2010),; Steven Erlanger, France Enforces Ban on Full-Face Veils in Public, N.Y. Times (Apr. 11, 2011), http://www.nytimes. com/2011/04/12/world/europe/12france.html; see also Davis, supra note 371.

(374.) Davis, Lifting the Veil, supra note 353 (internal citations omitted).

(375.) Id. at 118-19.

(376.) Id. at 119.

(377.) French burqa ban clears last legal obstacle, CNN World (Oct. 7, 2010), http://www.; Adam Scott Kunz, Note, Public Exposure: Of Burqas, Secularism, and France's Violation of European Law, 44 GEO. WASH. Int'l L. Rev. 79, 79-80(212).

(378.) Human Rights Watch, France: Face Veil Undermines Rights, July 3, 2014

(379.) See generally United States' Memorandum of Law in Support of Its Cross-Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment at 15, Hearn v. Muskogee Pub. Sch. Dist. 020, No. CIV 03-598-S (E.D. Okla. May 6, 2004), available at

(380.) See generally Morse v. Frederick, 551 U.S. 393 (2007); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Widmar v. Vincent, 454 U.S. 263 (1981); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

(381.) 393 U.S. 503 (1969).

(382.) Id. at 506.

(383.) See generally Morse, 551 U.S. 393; Hazelwood Sch. Dist., 484 U.S. 260; and Fraser, 478 U.S. 675.

(384.) Tinker, 393 U.S. at 511 (citing Burnside v. Byars, 363 F.2d 744, 749 (1966)).

(385.) Texas v. Johnson, 491 U.S. 397, 414 (1989).

(386.) Sanjeev Singh, Sikhs Allowed to Carry Daggers at Calif. School, WORLD Wide RELIGIOUS NEWS (Nov. 5, 2012), section=sikhism.

(387.) Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659, 663 (S.D. Tex. 1997).

(388.) See generally Discrimination Against Muslim Women, ACLU, sites/default/files/pdfs/womensrights/discriminationagainstmuslimwomen.pdf (last visited Sept. 10, 2014); Presumption of Guilt: The Status of Muslim Civil Rights in the United States, Council on American Islamic Relations (2007), uploads/2010/02/2007-Civil-Rights-Report.pdf.

(389.) Terry Frieden, U.S. to defend Muslim girl wearing scarf in school, CNN (Mar. 31, 2004),; Jesse Lee, Nashala's Story, White HOUSE BLOG (June 4, 2009, 3:20 PM), http://www.whitehouse. gov/blog/2009/06/04/nashalas-story.

(390.) Frieden, supra note 389.

(391.) The Fourteenth Amendment has been interpreted to prevent slates from applying dress codes in a discriminatory manner. For discussions of headscarves and the First Amendment, see Cassandra M. Vogel, Note, An Unveiling: Exploring the Constitutionality of a Ban on Face Coverings in Public Schools, 78 Brooklyn L. Rhv. 741 (2013); Christina A. Baker, French Headscarves and the U.S. Constitution: Parents, Children and Free Exercise of Religion, 13 CARDOZO J.L. & GENDER 341, 354 (2007); Onana Mazza, The Right to Wear Headscarves and Other Religious Symbols in French, Turkish and American Schools: How the Government Draws a Veil on Free Expression of Faith, 48 J. CATH. Leg. Stud. 303, 336-37, 340 (2009).

(392.) United States' Memorandum of Law in Support of Its Cross-Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment, supra note 379, at 19.

(393.) Justice Department Reaches Settlement Agreement with Oklahoma School District in Muslim Student Headscarf Case, DOJ (May 19, 2004), May/04_crt_343.htm.

(394.) Adrien Katherine Wing, International Law, Secularism, and the Islamic World, 24 Am. U. Int'l. L. Rev. 407, 418-20 (2009). It is important to note that France is not unique. "Islamophobia" persists at high levels in the United States. The attitude consists of an exaggerated fear, hatred, and hostility perpetuated by negative stereotypes and results in bias, discrimination, and marginalization of Muslims. Islamophobia: Understanding Anti-Muslim Sentiment in the West, GALLUP, west.aspx#l (last visited Sept. 9, 2014); see also FBI: Bias Crimes Against Muslims Remain at High Levels, INTELLIGENCE REPORT (Spring 2013), (Hate crimes against perceived Muslims have persisted at high levels).

(395.) Religions-Islam: Niqab, BBC (Sept. 22, 2011), religions/islam/beliefs/niqab_1.shtml. The four main schools of Islamic jurisprudence interpret the Qu'ran as not requiring women to wear headscarves or veils. Id.

(396.) These four verses are 24:30-31, 24:60, 33:59, and 33:53. Quran.COM, http://quran. com/24 (last visited Sept. 9, 2014); Wiles, supra note 10, at 717.

(397.) QURAN.COM, supra note 396.

(398.) Id.

(399.) Wing, supra note 394, al 412.

(400.) Id. at 413.

(401.) Id. at 412.

(402.) Id

(403.) Doreen Carvajal, Sarkozy Backs Drive to Eliminate the Burqa, N.Y. TIMES (June 22, 2009); Angelique Chrisafis, Nicolas Sarkozy says Islamic veils are not welcome in France, THE GUARDIAN (June 22, 2009),

(404.) Schenck v. United States, 249 U.S. 47, 51 (1919) (holding speech cannot be penalized unless it presents a clear and present danger to public safety).

(405.) The arguments are evaluated in Wiles, supra note 10, at 719-22.

(406.) Bennoune, supra note 353, at 388-91.

(407.) Catharine A. MacKinnon, Toward a Feminist Theory of the State 115 (1989); see generally Susanna Mancini, Patriarchy as the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism, 10 INT'L J. CONST. L. 411, 418-22 (2012). ANASTASIA VAKULENKO, ISLAMIC VEILING IN LEGAL DISCOURSE 109 (2012) (discussing the views of Catherine McKinnon and Andrea Dworkin).

(408.) MacKinnon, supra, note 407

(409.) Adrien Katherine Wing & Monica Nigh Smith, Critical Race Feminism Lifts the Veil?, Muslim Women, France, and the Headscarf Ban, 39 U.C. DAVIS L. REV. 743, 771-73 (2006); Karima Bennoune, The Law of the Republic versus the "Law of the Brothers ": A Story of France's Law Banning Religious Symbols in Public Schools, in HUMAN RIGHTS ADVOCACY STORIES, 155 (Deena Hurwitz, Margaret L. Satterthwaite & Douglas B. Ford eds., 2009); see generally Critical RACE Feminism: A Reader (Adrien Katherine Wing ed., 2003).

(410.) Keaton, Arrogant Assimilationism, supra note 353.

(411.) Wiles, supra note 10, at 719-22.

(412.) See Alia Al-Saji, The Racialization of Muslim Veils: A Philosophical Analysis, 38(8) Philosophy & Social Criticism 875, 886 (2010); Frantz Fanon, A Dying Colonialism (1965).

(413.) Wing & Smith, supra note 409.

(414.) Wiles, supra note 10, at 719-22.

(415.) Said, Orientalism, supra note 37.

(416.) Wiles, supra note 10, at 719-22.

(417.) Choudry, supra note 358, at 204.

(418.) Wiles, supra note 10, at 719-22.

(419.) Id.

(420.) Id.

(421.) Justin E. Smith, Does Immigration Mean 'France Is Over'? N.Y. TIMES (Jan. 5, 2014), ?ref=~opinion.

Leland Ware *

* Leland Ware, Louis L. Redding Chair and Professor of Law & Public Policy, University of Delaware. The author would like to express his gratitude to Professor Adrien Wing, University of Iowa College of Law, for her invaluable assistance with his research in France and the attendees of the 2014 Midwestern People of Color Legal Scholarship Conference at Indiana Tech Law School in Fort Wayne, Indiana, for their comments on an earlier draft of this Article.
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Title Annotation:VI. French Antidiscrimination Laws through Conclusion, with footnotes, p. 215-144
Author:Ware, Leland
Publication:Washington University Journal of Law & Policy
Date:Jun 22, 2014
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