Kensington school's decision must be appealed

Kensington school's decision must be appealed

Bert
Samuels

Thursday, August 13, 2020

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The anxiously awaited written decision in the Kensington Primary School prohibition of locks, save and except for children who wear locks as Rastafarians, has been handed down. Members of the legal profession, and many others, were unsettled when the decision was made without the reasons being given at the same time. As I combed through the 60-page, 163-paragraph “hair” judgement, my reaction was, “This judgement must be tested in our Court of Appeal.”

Paragraph 122 of the judgement sums up the factual issue in this case quite succinctly. It states: “In the 2nd claimant's (Virgo) circumstances she was being told she would be excluded not because of her behaviour, but because of her hairstyle. Further, the school, through its then principal, indicated that her locks are prohibited as there is a possibility that the hairstyle would lead to a lice or 'junjo' infestation. It is my view that hygiene does fall within the purview of Ali as a legitimate aim.”

It must firstly be made clear that at no time was this student's hair found with “jungo or lice”. Virgo was being punished singularly for the possibility that her locks would lead to contracting a lice or jungo infestation. The question which looms large is this: Where was the expert evidence that the wearing of locks, in fact, has the propensity to attract lice and jungo?

In law one can take judicial notice of certain well-known or natural occurrences. Locks are worn by many in our population, including medical doctors, judges, lawyers, ministers of government, teachers, and thousands of other Jamaicans. This Kensington rule is not only unscientific, but it is an insult to countless Jamaicans, including my own family, in which all my children wear locks. What makes this rule even more offensive is the fact that it does not apply to lengthy hair grown by other ethnic minority groups.

Locks are, in the main, grown by kinky-haired individuals. It is hair which belongs to the “many” in our national motto. Doesn't this make the Kensington hair rule not only unscientific but patently discriminatory? Isn't this rule plainly disgusting and revolting to right-minded citizens? And, were Kensington's claim true, that it “will” lead to lice and jungo infestation, would Jamaica not have a grave public health crisis on its hand with so many Rastas and locked individuals living here?

I found it most interesting that the prison rules of 1991 prohibit the trimming of inmates. As a rule, prior to these rules being made, and even afterward, locked inmates were trimmed upon entry into our prisons. Section 150 of those rules makes it clear that, unless a medical doctor so deems, on medical grounds, “The hair of an inmate shall not be cut without the inmate's consent.” So that, even if Kensington were a penal institution, the rule with respect to each prisoner could only be in place based on medical necessity.

The question of whether the court was correct in holding that the child's right to primary education under the constitution was not breached, in that the child can pursue her education at another school, is another sore point which ought to be tested on appeal. First, the court looked at and relied on the Ali case in the United Kingdom (referred to in paragraph 122 of its judgement quoted above). This is a case in which Ali, a student, was suspended from school pending investigations in a matter. Ali, the student in question, was a suspect in wrongdoing, as he was seen near a fire started in a waste basket in a classroom. Further, the parent of Ali failed to attend a meeting called to deal with the issue. It was in those peculiar circumstances that Ali's claim to a right to attend that school was dismissed. Here, Virgo has not been accused of any wrongdoing whatsoever, and neither have her parents. The court, nonetheless, relied on the Ali case and stated in paragraph 123 of its judgement thus: “I adopt the reasoning of the court in Ali and find that the policy of the school did not breach the 2nd claimant's (Virgo's) right to education. The 2nd claimant does not have a right to attend a particular institution and as such Kensington Primary School can reject the 2nd claimant as a student. This does not affect the 2nd claimant's right to education as she could always attend another school that supports her form of expression. Accordingly, the right to education is not engaged and thus the 1st defendant (Kensington Primary) has not breached the 2nd claimant's right to education. Right to equitable and humane treatment.”

Having found that the irrational “no locks” policy, save for religious reasons, did not breach Virgo's constitutional rights, the court went on to state that, in those circumstances, Kensington could reject her as a student, in that she was free to seek out a school which would accept her with locks. In the circumstances of this case, the deregistration of a well-behaved child for growing locks in an institution funded by taxpayers, has not even been frowned on but, rather, permitted by this judgement.

Virgo's parents have been sent off on a school-seeking adventure. The despicable irony is, a black child in England, a mainly white country, and the place the Ali case was decided, cannot be taken out of school for wearing locks.

For the record, the children's advocate representative who intervened and argued strenuously on behalf of the Virgo child, but whose submissions failed before the full court, must be congratulated. In my view, it is in the public's interest that this judgement be tested on appeal. It raises not only matters of great general public importance, but matters of global significance when one looks at the fury this decision raised in international media on no other day but our very 'fus' a Augus'', Emancipation Day, and coming on the heels of the Black Lives Matter worldwide protests. Let us hope that the final appellate decision in this matter will not display the mental disorder known as post-slavery traumatic syndrome.

Many of us will, understandably, find it difficult to breathe until this matter is ventilated in a higher court.

Bert Samuels is an attorney-at-law. Send comments to the Jamaica Observer or bert.samuels@gmail.com.


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