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Every year since I’ve been back in Jamaica, we get a flurry of stories about children bucking up against schools for how they look at school, mainly how they dress and how they keep their hair. It’s often been ‘resolved’ by promises from the Ministry of Education to give ‘guidance’ to schools. But, truth is, schools have wide autonomy in how they run their affairs. So, it’s an almost-annual ritual where the ‘soldiers’ of the ‘rules are rules’ brigade face off against the warriors of Constitutional rights to free expression.

Now, one case reached boiling point and ended up in court, starting with an indecent at a public primary school in Portmore, St. Catherine in 2018. 

Few of us make a habit of reading court judgements but I suggest you read this one. It’s full of the usual turgid legalese, but wont take much more than half an hour to get through the 60 pages. It’s instructive or potentially instructive about how laws get interpreted. In that regard, it highlights the significance of how a case is framed for judges to address.

Now, many lawyers and our local media have already given their take away, so I am not going to recast all of that. The Gleaner summary is an easy read: Court releases written judgment in case of dreadlocked girl barred from school:

‘According to the court, the girl’s constitutional rights, as pleaded, were not breached.

The three-member panel held that the policy of the school did not breach the child’s right to education.

The judges also found that the child does not have a right to attend a particular institution and as such Kensington Primary School can reject her as a student.

The panel further said this does not affect the child’s right to education as she could always attend another school that supports her form of expression.’

The Jamaica Observer gives its take, stressing the ruling has nothing to do with Rastafarianism:

‘The court said children have long been allowed to wear locks to school as a religious expression of their, and their parent’s faith but noted that in this case, the hairstyle was a decision taken at home.

“The claimant’s attorney has argued that the parents were not obliged to disclose their religious preference to the school, and that acceptance of the child’s variance from the policy espoused by the school was a matter of self-expression based on a decision taken in their home, which should be honoured and accepted without any question,” it said.

The court, in a 60-page document, indicated that it cannot be right for each individual to vary the rules of engagement with organisations, simply because a right exists to participate and avail ourselves of the benefit of publicly funded institutions, without proper reasons or justification.

“This may potentially mean that a student or their parent could wake up tomorrow and identify as whoever or whatever animate or inanimate object or personality they wish or identify themselves with any belief, and come to school ‘expressed’ that way in pursuance of their right of freedom of expression and a decision taken in the home.”’

I’ve cited both summaries to show how, depending on where you turn, you can and will take away something different from these ruling.

I have seen already different lawyers putting different stresses on the decision on tresses.

We know legal minds work differently but I was surprised at how little probing there was to find evidence to support assertions such as the health risks, which were the initial points of contention. The school’s principal stated concerns were about ‘locked’ hair and how it had developed ‘junjo‘ and been associated with head lice infestations. The court didn’t even define ‘junjo’—a Jamaican word for fungus or mildew—and could have offered medical opinion of hair and lice infestation (which is regarded as a result of poor personal hygiene not related to particular hairstyles), quoting the judgement (my stresses):

‘During a heated discussion, the stated reason given to the mother, is that parents do not wash their dreadlocked children’s hair, in a timely manner, and the hair gets “junjo” and this had created serious lice infection issues in the past. The parties and the court understood that to mean that the hair worn in that fashion encouraged insanitary conditions among the children and was a health hazard.’ [para 3]

’The mother, it was reported, communicated that it was just a hairstyle’ [para 5]

So, these aggrieved parties went to court over a ‘hairstyle’ and claims by the school that it was unhygienic. Put that way, the matter seems to not warrant being elevated to one of infringement of constitutional rights. That’s what the court concluded:

‘For the reasons given herein I have concluded that, the 1 . Claimant has no locus
standi to bring this action. The constitutional rights of 2nd Claimant, as pleaded, have not been breached and the 2nd Claimant is not entitled to the declarations sought.’ [para 162]

However, in getting to that judgement, the court has reinforced the current standing that schools can determine how children’s hair is presented at school (along with dress), as part of their legitimate rules to ensure they can fulfill their core function. However, the court, leaves the door open for legislators to take away such discretion so that the law can protect freedom of expression more widely. In somewhat lengthy legalese:

[153] In my view, schools cannot survive or be run without rules for the various constituents that make up the school population. We are certainly allowed our freedom of expression, within what moves and drives our conscience, but schools cannot be left to guess what it is, if it falls outside of set rules, guidelines and norms that are in a particular organisation. Or if it is not in keeping with what is considered to be for the health, safety and orderly organisation of the school for all the students, teachers and the rest of the school community. In fact, I daresay there may be many teachers and other personnel at the school who may choose that hairstyle as a part of the daily adornment.

[154] There is always the choice, to raise your child according to whatever decisions you have determined is best for your home, and is something to which you subscribe and believe is right and just for your family. Others around you have that same right, as do organisations, workplace and schools including public entities who must configure rules to govern their environment, to benefit all who use them.

[155] It cannot be right or just for each individual to vary the rules of engagement with these organisations, simply because a right exists to participate and avail ourselves of the benefit of publicly funded institutions, without proper reasons or justification, and simply on the basis that it does not fit in with their choices and mode of self-expression.

[156] Self-expression for many people vary from day to day, week to week, and I dare say from hour to hour, and take on wide and varied forms. I cannot envisage an orderly school society, and certainly not an institution run for the benefit of large numbers of children, often interacting in close proximity, where they are exempted from the rules of the school, simply on the basis of individual self-expression. If that were so, except for religious and other personal idiosyncrasies, self-expression in their attire and adornment would potentially then, be just based on the student’s own, or their family proclivities, or the unstated choices of each of their parents for self-expression by their family, taken in their individual homes. I am wary of opening what may be considered the “flood gates” of self-expression applicable to school communities and the choice of adornment for the children therein and the impact it would have on the core function of the educational institution.

[157] This may potentially mean that a student or their parent could wake up tomorrow and identify as whoever or whatever animate or inanimate object or personality they wish or identify themselves with any belief, and come to school ‘expressed’ that way in pursuance of their right of freedom of expression and a decision taken in the home. Perhaps the time has come for the legislature to remove this matter from the discretion individual entities and give it the force of law. How far that is to be taken is a decision that must be made by the policy makers.

[158] Let me once again say categorically that this is not a case about Rastafarianism and religious freedom of expression and thought connected with that religion. Children have long been allowed to wear locks to school as a religious expression of their, and their parent’s faith. The claimant’s attorney has argued that the parents were not obliged to disclose their religious preference to the school, and that acceptance of the child’s variance from the policy espoused by the school was a matter of self-expression based on a decision taken in their home, which should be honoured and accepted without any question.

[159] So that the potential outcome of the wide unfettered acceptance of this concept may well envision a child coming to school dressed or with their bodies adorned, in any way they wished, based on their, or the family’s perception of freedom of expression. It may also be, taken to its extreme and unfettered, that any decision taken in a household, can be thrust upon a publicly funded school of their choice. It would mean that whatever a child or parent determines to be the expression that best facilitates their own personal view is acceptable and allowable, and that school rules as to adornment, dress and uniform in general are viewed a suppression of expression and identity of the child and their family’s choices.

[160] I find this restriction and the rules as to adornment of the hair, especially as expressed, to meet certain of the objectives of the policy of the school. The measures adopted are designed to meet the objective as identified and based on the past experiences in this regard at the school. The objective of creating a more controlled hygienic environment is important to the proper order and effective learning at the school and does not prevent the claimant from enjoying religious freedom, and the expression of that religious choice and cultural ethnicity to which her parents subscribe in their household.

Whether the case goes to appeal or not, the court’s thinking is clear: essentially, rules are rules and can be applied by institutions as they see fit. However, that may create potential infringement of rights and Parliament should get a move on to clear that up. 

Some are already up in arms about whether the court has become part of the ‘hair police’ force.

The PM has already pointed in the direction of legislative change, as regards hairstyles and education, with a statement published over the weekend, before the written judgement was issued. 

So, another battle can start raging as we head (no pun) towards the next general election.

By the way, Kensington Primary confirmed that the child has a place at the school for the coming year, as reported by the Gleaner:

‘Chairman of the Kensington Primary School board, Bishop Alvin Bailey, said the child, who was five at the time of the initial stand-off, still “has a place in school”.

“The child has been there all along from first grade on through the entire second grade and the child is expected to report to school in September when school reopens,” Bailey told The Gleaner on Monday night.

“From the very onset of this case, the child was never barred from school,” the bishop said.

But that narrative contrasts with the storyline of the parents, Dale and Sherine Virgo. The Supreme Court had granted an injunction for the child to attend school after Jamaicans for Justice filed a motion on behalf of the child and her parents in August 2018.‘

If nothing else, then, we have a bit more cinema to watch as we head through the summer.