In a previous article entitled “Black Hair Matters” published here on September 21, 2022, I registered my discontentment with those who, when issues which surround our identity abound, attempt to justify archaic notions with the shallow response “it’s the rule.” I noted then, that the denial of a young St. Mary’s College student access to education on the basis his hair was not properly groomed was counter-productive. While the rule did not explicitly discriminate against any particular ethnic group, the anecdotal evidence always suggests the inherent prejudice against black hair meant that the policing of black hair was disproportionately higher. As I noted in my earlier commentary, one only had to look at the pattern of whose hair was blacklisted to determine the objectivity and neutrality of the rule. This was always based on the colonial idea of what was or was not a thing of beauty.
However, I did also support the notion of challenging this provision of the SMC’s Code of Conduct, and the court making an inquiry into whether it is compatible with the fundamental rights and freedoms within the Constitution of Saint Lucia. Well, the verdict is in, and the position of the law seems to reflect the exact sentiments held in the Jamaican case of Virgo v. Management of Kensington Primary School, which held that a school policy prohibiting dreadlocks as a hairstyle does not violate Constitutional rights, including self-expression as the parents had not informed the school that the child’s hair was a manifestation of their Rastafarian beliefs and the school had not told the parents that there was an exception to the policy on the grounds of religion. The court noted in that case, at paragraph 155, similar to this case, that an individual cannot vary the rules of an institution simply because they do not fit within their choices and mode of self-expression and held that the school’s policy was not an infringement of the child’s right to freedom of expression.
Now that the judgement the case of Alexander Elliott vThe Board of Management of the St.Mary’sCollege and the Attorney General of Saint Luciais available, it is important to discuss it in some detail so as to appreciate the nature of freedom of expression under our Constitution, and how the court arrived at the conclusion that the rule did not violate their right to freedom of expression.
Simply put, a student at the St. Mary’s College was denied the ability to access education due to the breach of Rule 1.19 of the school’s Code of Conduct, which mandated that “students’ hair must be properly groomed at all times [and] at no point should students’ hair be more than one centimeter long or high.” If a student does not comply with this rule, the Code of Conduct provides for a series of punishments, inclusive of but not limited to detentions, written warnings, sending students home until they have complied, banning of students from playing games and meeting with parents to resolve the failure to comply. His non-compliance however caused him to be “removed from all classes and he was instructed to call his parents to cut his hair until he made the necessary changes to conform with the rule” according to paragraph [4] of the Judgement.
His parents refused to comply, without providing their reasons. Instead, they approached the High Court claiming that Rule 1 violated the child’s freedom of conscience as per section 9 of the Constitution, freedom of expression as per Section 10 of the Constitution and human dignity. Also that Rule 2 was not in conformity with the UN Convention of the Rights of the Child, that Rule 3 should be struck down and regulations mandating the compliance of all schools with the provisions of the Constitution be so ordered.
It is by now common knowledge that in order for one to assert that there has been a contravention of their fundamental rights and freedoms established under the Constitution, that contravention must be done by the state or any of its agents. In this case, it was concluded that, the St. Mary’s College, albeit not a public school- operated and owned by the state, was an assisted school who operated with the assistance of state funds and resources. It meant that they could be classified as a state agent, as there was heavy involvement of the state in many aspects of its operations and maintenance and could easily be classified as a public school as per paragraph [20] of the Judgement.
The kernel of the case however, turned on whether the rule violated the freedom of conscience of the student. What is freedom of conscience anyway? Freedom of Conscience as established under Section 9 of the Constitution provides that “a person shall not be hindered in the enjoyment of their freedom of conscience- which includes freedom of thought, religion, changing his or her religion or belief and freedom.” This Freedom however, similar to all of the others can only be limited when the interests of defence, public safety, public order, public health, and others require, and other instances in relation to religion and educational institutions. Essentially, freedom of conscience includes the ability to think, and do as one choose, but that this thought is not the same as an opinion and a belief. The Belief must be serious, coherent, and important in order to be protected.
The claimant therefore argued that by forcing the child to cut his hair took away his freedom to form his own thoughts and imposes the thoughts of the Board of Management, therefore defeating the right afforded to the claimant. The court agreed that freedom of conscience does permit that the minor can hold the belief that he should no longer cut his hair. However, the court concluded that, in rejecting the arguments on this provision in paragraph [43] of the Judgement that, “it is not every opinion that rises to the level of belief and is shielded by the Constitution.” The court noted that this opinion that his hair should not be covered was not serious or important enough when balanced with the interests of ensuring the orderly and efficient discipline of the college. While a balancing act of individual rights versus the interests of the wider community is always at the heart of our notion of rights, as your rights are only right to the extent that it does not affect others, the court did not adequately interrogate the nature of the rule in order to ascertain whether it in fact ensured discipline and order, as claimed by the school. It seems therefore that the court is attempting to place a valve and conditions, without going further on what can be classified as ‘important and serious beliefs’ that one must hold in order to rise to Constitutional importance. But it is not surprising because of the court’s reliance on the Virgo case. Moreover, the court held that for the choice to be respected, it must have been communicated and that one could not expect or assume what benefit the claimant is seeking to advance if it was not communicated especially after being asked numerous times by the School Principal.
Essentially, the court held on this point according to paragraph [51] that
“In a word, the claimant’s failure to communicate the reasons for his non-compliance stripped him of any claim to a breach of freedom of conscience as it would be an affront to logic for the Board to be held liable for a breach it had no idea it was perpetrating.”
On the question of whether the rule breached freedom of expression under Section 10 of the Constitution, it is important to first establish the scope of the right. Essentially, the right includes the the freedom to hold opinions without interference, to communicate ideas and information without interference, whether to the public or to any person or class. Ofcourse, the exceptions to this inherent right remain the same, inclusive of the right to not defame others or other things required in a democratic society. Cases such as McEwan from the CCJ reminded us that a person’s choice of attire is bound with their identify and expression. Virgo even noted that hairstyles worn with intent may be considered expression.
However, the court concluded that because the minor did not wear his hair to communicate a message, it could not form part of the freedom of expression. The court was essentially, placing a valve and condititions, without going further, and noting that the ability to express onself must have an underlying deep conviction and ideological backing if it is to be protected by the Constitution. It may simply be a case of black hair mattering only when black hair matters.
But, what would that deep conviction be? Can it not suffice, that the freedom inherent in the right is the ability to decide what one wants to do without any need for a deep conviction? Need there be a deep conviction? What is this threshold, and must it be akin to wearing one’s hair for statements during the Black Power Movement, or as part of the Rastafarian Religion? The problems inhereint in the claimants case may have been that no evidence was provided to show the underlying rationale for not wanting to cut one’s hair, especially in circumstances where unlike Virgo, the hairstyle in question cannot be directly attributed to any ideological backing. It was not locks which was in question. The court however left the question open on what would be the nature of the intent which must be shown in order to prove that it is a constitutional infringment.
But, the court did not only stop there, but noted that there must have also been communication of that deep conviction for one to be exempted from the rule. The court noted and quoting extensively from other cases on similar subjects that, “it has not been established that the claimant has been prevented from expressing a particular opinion or idea by means of his hair.”
Further, the court held that the school satisfied the exceptions to the infringment of the right if there was any infringment, in that the rule was reasonably justifiable in a free and democratic society. Essentially, the court noted that the rule was justifiable as the basis of the rule was to (1) uphold the moral traits and traditions of the school which is the foundation for the success of the students, (2) to avoid distractions and avoid copycatting behavior, (3) the rule with the 1 centimetre rule is objective and takes away the subjective application, (4) promotes effective teaching and learning in school, (5) it is not based on irrational and arbitrary considerations and has long achieved the goal of maintaining order and discipline at the schoo which has contributed to its stastus as the number one school and (6) it is applied equally to everyone and provides allowances to students by communicating to the school and they will be given leave to wear their hair as is.
But, what is problematic about the justification of the rule is the inability to show how the rule contributes towards order and discipline, and how the preservation of that particular rule in question, has contributed to the success of students and the school. Is it the underlying notion of following rules which provides the order or compliance with this rule in particular? It is also questionable as to the colonial undertones that permeates through the notion of hair being a distraction, only if we accept that the policing of the hair is done more to black students than other ethnicities. As I mentioned in a previous article, black hair is to be accepted in schools, if it is tamed and on the other hand, the reality is that students of other ethnic groups are allowed to portray the beauty of their hair in its natural state without the wrath of administrators and other members of the newly replenished colonial class. But, what about the other grooming codes which have been reviewed in countries like Trinidad and Tobago, which provide for Afros within school, are they too not to be concerned about the distraction which can ensue from ‘loose black hair’?
Further, the nature of the rule can still be seen as arbitrary and irrational because albeit the 1 centimetre has taken away subjectivity, the determination of 1 centimetre which is not based in any logic or scientific understanding can be seen as arbitrary and irrational. A number plucked from thin air.
But what is further problematic about this approach is is what my colleauges Ms. Adalia Nembhard and Mr. Rashad Brathwaite have described in their own analysis and commentary on the Virgo case as the commencement of the case on the wrong position. Essentially, “Rather than act as a pivot for an evolutionary course of action, the court reinforced the historical policing of physical appearance deeply rooted in colonial standards. The court failed to appreciate that rights are inherent. They failed to appreciate that it is restrictions that have to be justified and properly engaged. Not rights. Therefore, it should have been the State’s obligation to indicate why the school’s restrictive policy was justifiable.”
Similarly, there was no full comprehension of the ‘why’ underpinning the restriction on the right by the school’s rule, but instead an acceptance of the position for what it is. There was no interrogation of the rule itself, to see how and if it actually maintains discipline, order and if is not arbitrarily applied.
In the end, the case reinforced the position that I have held in previous Articles on this subject, but there is hope that this can be settled out of court and can be addressed in the new school grooming policy.
