Court outlines ruling in 'dreadlocks' student case
Attorney showed clear misunderstanding of the law on freedom of religion, says judgeTuesday, August 04, 2020
BY ALICIA DUNKLEY-willis
The “no braids, no beads, no locks” policy of Kensington Primary School did not violate the constitutional right of the seven-year-old daughter of Sherine and Dale Virgo, a full court panel of Supreme Court judges stated in a written judgement released yesterday.
At the same time, the judges said attorney-at-law Isat Buchanan, who represented the family, showed a clear misunderstanding of the law in his submissions on the issue of freedom of religion.
“While I am in agreement that people have a right to express their religious beliefs, or indeed any other conscientiously held beliefs to which they adhere, there is nothing in this case that directs the mind of this court to believe that the claimant's right to freedom of religion has been breached, as she has not adduced sufficient evidence to this court to say that the actions of the school infringed this right, for example, by somehow encouraging or forcing the child or her parents away from their stated beliefs — beliefs which I might add were never disclosed,” Justice Sonia Bertram Linton said.
“Mr Buchanan valiantly tried to convince the court that all persons who wear locks are to be automatically identified as Rastafarians, and as such do not have to state their religious beliefs. I cannot support this submission,” the judge stated.
The written judgement — which followed a ruling handed down last Friday by justices Bertram Linton, Evan Brown and Nicole Simmons — also said that a decision as to a choice of personal expression taken by a child and their family cannot be imposed on a school in contravention of a school rule or policy.
The judges made it clear that the case was in no way about Rastafarians being prevented from having their children attend a public institution because of dreadlocks worn out of religious observance.
“That issue has long been settled in our school system and there are countless children throughout our schools in attendance who wear dreadlocks,” Justice Bertram Linton stated in the 60-page judgement.
Highlighting the admission of the claimant's attorney that the religious beliefs of the parents were never communicated to the school, Justice Bertram Linton said the attorney's argument that the parents or the child did not and should not have to disclose any religious adherence, and that the child should be allowed to attend school in the way that her hair was adorned because it represented the family's decision, was “a bold and generalised statement which, if taken at face value, has innumerable implications for the length and breadth of self-expression that should be allowed in our schools”.
“There is no dispute that the school established this policy, not as a way to maintain discipline and order in the school, but as a preventative measure in the case of an outbreak of 'lice' and 'junjo'. It is clear from the evidence that the school had sanctioned this policy on the basis of its own experiences with unhygienic students in the past,” she said.
“Having regard to the assessment of the authorities, I am of the view that the facts of this case do not support a finding that the right to equality before the law has been engaged, let alone infringed by the defendants. The policy in question does not meet the criteria, it not being a law,” she stated further.
In the meantime, she said there was not sufficient evidence presented to the court that the school had infringed the right of the minor in question by enacting a policy that interferes with the protection afforded to her as a child.
“It is not sufficient, in my view, to base my decision solely on the reaction of the mother, particularly when she had not acted upon the suggestion to cut her daughter's hair. I have to keep in mind that this case is about the right of the child and not that of the mother. It is my view that there was no justiciable physical or mental harm which would have been caused by the defendants. The withdrawal of the space at the school never materialised. The act of removing the locks of [the child's] hair could have only been carried out with the knowledge and consent of her parents,” the judge noted.
“Furthermore, what is discernible from this interaction is that the claimant's mother/parents, throughout this interaction, did not inform the school that their daughter had locked hair for religious purposes, and it is evident that the hairstyle the [child] was wearing was not easily identified as such. This view is supported by the information in the affidavit of Christine Hamilton, the current principal. She says that during orientation the [child's] hairstyle was identified as 'sister locks' and that the mother had indicated that her hair was 'just a style',” the judge pointed out.
“I find that the policy of the school did not breach the [child's] right to education. The [child] does not have a right to attend a particular institution and as such Kensington Primary School can reject [the child] as a student. This does not affect [her] right to education as she could always attend another school that supports her form of expression.”
Furthermore the judge said they had failed to establish how the minor had been treated differently than another child in similar circumstances to her own and, therefore, the court was not of the view that her right to equitable and humane treatment had been infringed by the school.
Addressing the argument that in the current cultural context as black people and Jamaicans, the locked hairstyle should not have to be explained and justified, Justice Bertram Linton said “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,” she pointed out.
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