Wed | Oct 28, 2020

Legal Scoop | Analysing the ‘dreadlocks’ case

Published:Sunday | August 9, 2020 | 12:20 AM
Shena Stubbs-Gibson
Shena Stubbs-Gibson

In response to requests from several readers, this week we will summarise the ratio decidendi (the rationale for the decision) in the so-called ‘dreadlocks’ case for readers who would like to understand the court’s reasoning but without wading through the 60-page judgment.

Background

The action in question was brought by Dale Virgo (first Claimant) and ZV (his minor daughter), through her mom, Sherine Virgo, against the board of management of Kensington Primary School et al. The Office of the Children’s Advocate was also a party to the proceedings as an Intervener. The action alleged various breaches of ZV’s constitutional rights in relation to Kensington Primary’s threat to withdraw the offer of a space to ZV at that school if she did not remove her locks. The school said it had an unwritten policy of no braids, no beads, no locks. The basis for the school’s position on locks was stated to be that parents did not wash their dreadlocked children’s hair, in a timely manner, and as such the hair got ‘junjo’ and this had created serious lice infection issues in the past.

RATIO

Before the court, counsel for ZV and the Intervener argued that Kensington’s posture breached ZV’s rights under the Constitution of Jamaica in various respects, each of which was considered by the court and – in large measure – summarised below.

To begin with, Justice Sonia Bertram Linton, who delivered the judgment of the three-member panel, noted from the very outset of her reasoning that the issue before the court was not about Rastafarians:

“This is not a case of Rastafarians being prevented from having their child 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.”

The issue, according to Justice Bertram Linton, was:

“… how far should the school and/or the courts go in endorsing this extent of freedom of expression by individual students in light of rules and regulations for uniform and adornment laid down for public schools”.

Writer’s Query: Did the court, from the very outset, miss the additional issue of the cultural and racial significance of wearing locks as a form of expression for Afro-Jamaicans and, if this was missed from the very outset, would that lacuna have had any impact on the ultimate ruling?

Right to equality before the law – In reviewing whether this right had been breached, Justice Bertram Linton made the early point that:

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. [note – emphasis added]

Writer’s Query: What should the appropriate standard of evidence be for a court to accept said evidence as “not being in dispute”, especially in circumstances where the evidence forms the basis of a potentially discriminatory policy?

Having proceeded to look at various authorities which treated with the issue of what amounted to a “law”, Justice Bertram Linton went on to conclude that this particular right had not been breached as Kensington’s prohibition on locks was a “policy” and did not have the force of “law”.

Right of a child to such measure of protection as are required by virtue of the status of being a minor or as part of the family, society and the State – as it pertained to this right, the court noted that it was not able to discern from the submissions how this right had been infringed. The court noted that there was no local jurisprudence on the area and so approached the issue from looking at case law which had similar language.

The mother’s evidence that she would have to cut her daughter’s hair for her to attend Kensington, according to Justice Bertram Linton, was:

… not sufficient … as it did not give any indication that she, ZV, was personally affected by the position taken by the school on her locked hair… 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.

NO BREACH

The right to publicly funded tuition in a public educational institution at pre-primary and primary levels – in arriving at its conclusion on whether this right had been breached, the court looked at various authorities and concluded that there had been no breach.

According to Justice Bertram Linton, while the second Claimant had a right to education, she did not have a right to attend a particular institution, and as such, Kensington Primary could reject her. The court noted that even if ZV’s right had been limited by the school’s policy, this could be justified if the limitation was for a legitimate aim. The case of Ali was relied on in this regard. In the court’s view, the limitation imposed by Kensington Primary was for a legitimate aim given that the basis for the limitation had been because there was a possibility that the hairstyle would lead to a lice or ‘junjo’ infestation. In the words of Justice Bertram Linton, “It is my view that hygiene does fall within the purview of Ali as a legitimate aim.”

Right to equitable and humane treatment – The court also held that this right had not been breached. Counsel for ZV had argued that the right had been breached in relation to her as she had been treated less favourably than her non-locks counterparts. The court disagreed. According to Justice Bertram Linton, the second Claimant (ZV) would have had to bring evidence to show that a child who had locked hair like hers, and not falling under any of the exceptions, e.g., religion, was allowed to attend the school without issue. According to Justice Bertram Linton, “The second Claimant, in my view, has failed to establish how she has been treated differently than another child in similar circumstances to her own.”

Writer’s Query: Does this reasoning not open the door to one person from a group of discriminated persons, e.g., black people, or women, never being able to claim inequitable and inhumane treatment, if a permissible response is that all persons in similar circumstances are treated in the same manner?

Freedom of expression – While the court accepted that the Virgo family locks represented an expression of their Nazarene beliefs, the court nevertheless felt that ZV’s right to freedom of expression connected with a religious belief had not been breached. There could be no breach since ZV’s parents had not raised any religious adherence to the school as the basis for her locks. According to Justice Bertram Linton, “It cannot be assumed that everyone with hair adorned in this fashion is doing so in furtherance of religious expression or any expression at all.”

Writer’s Query: Couldn’t the court, having found that no constitutional rights were breached, nevertheless have proceeded to order that the child not be removed from the school given that it had been established to the court’s satisfaction that the basis for her hairstyle was her family’s Nazarene vow? After all, hadn’t the second Claimant asked the court to grant such further and other relief that it deemed fit?

Freedom of religion – In finding against ZV under this heading as well, the court contended that Kensington could not be found to have breached a right which they were never told was in play or being exercised. According to Justice Bertram Linton, it was apparent from the evidence that the school’s reason for seeking to have the second Claimant’s locks removed was because they believed, and had been told by the mother, that it was being worn only as a hairstyle, and “it is their unrefuted evidence that they had experienced issues connected with hygiene connected to the wearing of that type of hairstyle in the past”.

CONCLUSION

Rastafarianism may not be the issue in the Virgo case, but the Rastafarian hairstyle was definitely the issue. While the rationale for ruling against some of the breaches claimed is, in the view of this column, unassailable, the rationale for some of the others do not appear to be equally so. As a society of Afro-Jamaicans, it should give us, at the very least, a moment’s pause, that braids, beads and locks (largely Afrocentric hairstyles) should still be in issue in Jamaica today. Hopefully, the decision, given its importance, will be appealed to the highest level.

- Shena Stubbs-Gibson is an attorney-at-law and a legal commentator. Send feedback to shena.stubbs@gleanerjm.com or follow her on Twitter: @shenastubbs. This column is printed every other week.