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Wednesday, 22 June 2011

Rights in schools: getting out of pupils’ hair

For Halsbury's Law Exchange, published here

When the magazine Punch was still extant, and still funny (not the same thing in its case), it used to have a column for amusing newspaper headlines or bylines, of the sort that were later found in endless round-robin emails. My personal favourite was an apparently genuine advertisement offering “a free set of bass guitar strings with every trumpet purchased”.

Another I remember told of a schoolboy who had been “suspended by his head because of his long hair”. Nowadays the unfortunate schoolboy would have a legal remedy against the school, whichever way one interprets the headline (double pun acknowledged). If he was caught with his hair somewhere, doubtless someone would fashion a personal injury action against the school for negligently failing to remove the hazard. If on the other hand he was excluded from the school for a time because of the length of his hair, then he might have an action along the lines of the recent decision in SG v St Gregory’s Catholic Science College [2011] All ER (D) 113 (Jun).

The case concerned a pupil, SG, who wore his hair in a style known as "cornrows". Although not explicitly contrary to the school's written policy, it had been made clear at the start of the year (at a meeting at which SG and his parents were not present) that the style would be banned.

SG brought judicial review proceedings to challenge the ban, contending, inter alia, that the policy constituted indirect discrimination on the ground of his race, pursuant to s 19 of the Race Relations Act 1976 and s 85 of the Equality Act 2010.

The question thrown up by the case essentially concerns the scope of the freedom of a school to set a uniform policy. One might have thought the limits should be very broad, but not so broad as to include discriminatory aspects: a child should not be forced to act contrary to his or her own culture. General rules may well inadvertently have that effect: a ruling requiring no hats might clash with some religions, for a start.

Even if the UK were to adopt the French concept of laïcité and ban all religious symbols in schools, the issue would still arise in cases such as SG’s, where the ground of objection was one of race or culture rather than religion.

It certainly was not the intent of the policy in SG’s case to discriminate against anyone; hence the action was for indirect discrimination. This required SG to show that the school had a policy which applied equally to all but which placed one group at a particular disadvantage, and that the policy could not be shown to be a proportionate means of achieving a legitimate aim.

Collins J held that:

It is only if there is a genuine cultural and family practice of not cutting males’ hair and wearing cornrows that an exception could be made. It would be made clear that the grounds for such an exception would have to be established and that conformity must occur unless to conform was regarded as impossible. There is no reason why hairstyles which might be indicative of gang culture should be permitted.”

As a starting point, no-one would suggest that a school should discriminate, knowingly or otherwise, against a particular culture. But there remains room for disquiet. It is almost inevitable that some symbols of importance to some pupils will be excluded by any uniform policy. Collins J said that only "genuine" cultural symbols or practices could form a ground of challenge. But how is the school to judge what is genuine? What of kilts and tartans, both of which can be said to be an important symbol of Scottish culture now, but neither of which have anything like the ancestry television and films would have us believe?

It seems to me that requiring schools to adjudicate on the genuineness of a particular cultural symbol is akin to the decision in Nicholson v Grainger to elevate non-religious belief systems to the status of religions for employment purposes. For an employer to try and determine the status of a belief system is an unwieldy and unnecessary exercise, it will be the same for schools. Adam Wagner writes that

schools will be frantically reexamining their hair and clothing policies for potential discrimination and students dreaming of their day winning against their teachers in court

Which may or may not be the best use of the ever-stretched school resources.

Many pupils (and adults for that matter) change their cultural, religious and other identity as they go along. Is each new identity to be assessed according to its age, how deeply held it is by the particular pupil and some other criterion or criteria?

Moreover, some practices - cultural or whatever - are contrary to principles of liberty, equality and other values, and will end up being banned, causing accusations of inconsistency concerning what is permitted. This was in fact something the school had in mind in SG’s case since it associated cornrows with the gang culture it was trying hard to eradicate (comments below other articles on the case indicate that that was a controversial association to say the least). Collins J dismissed the idea of a would-be skinhead using the decision as a precedent, but not all traditions of shaving heads belong to far-right lunatics, so we might expect problems of consistency at least.

Perhaps the simplest solution would be for schools all to loosen their policies to the point where almost nothing is prohibited – but immediately some pupils will start wearing and displaying things others find offensive, leading to more governors’ meetings and litigation anyway.

Perhaps instead, then, schools should be given freedom to determine policies and adjudicate exceptions themselves, within a very broad framework indeed, and anyone who disagrees with a particular policy can either (i) choose a new school, or (ii) perhaps consider that it is not always a matter for regret that pupils have restrictions that adults do not.

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