Mon | Oct 19, 2020

Andre Sheckleford | Ban on dreadlocks and the right to protection of private and family life

Published:Sunday | August 9, 2020 | 12:17 AM
File
Sherine Virgo speaks with the media as her husband, Dale Virgo, looks on outside of the Supreme Court in Kingston on Friday, July 31, 2020.
File Sherine Virgo speaks with the media as her husband, Dale Virgo, looks on outside of the Supreme Court in Kingston on Friday, July 31, 2020.

This is a comment on the recent decision of the Full Court between the young child and her parents against Kensington Primary School and departments of government, where a policy restricting the wearing of dreadlocks at the school was found not to violate the Constitution. I’ve set out my reasons why I disagree, with a focus on the right to private and family life.

As a disclaimer, I have not been privy to how the case was presented, and, therefore, have no idea as to the extent that the points I’m raising below were argued. The discussion on private and family life does not consume much of the judgment.

As a quick refresher, the parents of a child were told that their child could not attend her school with dreadlocked hair. There is a bit more to it, but that will suffice for these purposes. The parents brought a constitutional action against the school’s board of directors, the Ministry of Education, and the attorney general, alleging that a host of constitutional rights had been breached, including the right under Section 13(3)(j) of the Constitution, which contains protection for the right to private and family life. As noted above, this is the right upon which I will be focusing.

Establishing a breach of a constitutional right

I am trying to avoid legalese, so I will limit the legal discussion to just one case and one legal test. Because of the language of our Constitution (and, dare I say, a trend in constitutional jurisprudence in the Western world), the test we use for establishing the breach of a constitutional right is borrowed from the Canadian case of R v Oakes. It is more broadly known as a proportionality test, and the main questions asked are:

1 . Has some measure abrogated or interfered with a right?

2 . If so, is the measure in pursuit of some legitimate objective?

3 . If the objective is legitimate, is the measure rationally connected to the objective?

4 . If there is such a rational connection, could the objective be achieved by a method that interferes with the right to a lesser extent?

5 . If the measure satisfies all of the above, does the societal cost of the measure outweigh the benefit to be derived from the measure?

The latter question is the most contentious (to the point where some say it is not truly a part of the test) as it involves a fair amount of value judgement, which is usually not ideal when such touchy topics arise for consideration. That being said, the proportionality test is a useful test not only when discussing constitutional rights, but also when considering how the actions of the State may run contrary to some other legal rule or principle.

Let us bring it to life with an example. If you enter a government building with CCTV camera footage, your right to privacy is being abrogated. The interference with your privacy right is, however, in most cases, justified as the objective is probably security. CCTV coverage is rationally connected to security, and, depending on how the recording is stored and accessed, the desired level of security can hardly be achieved by other means. Also, the societal cost of a temporarily stored recording of a citizen conducting business in a public space is not so heavy as to outweigh the security benefit.

DREADLOCKS AND PRIVATE/FAMILY LIFE

A person’s desired appearance may be considered an element of that person’s personality, and is therefore, a feature of his or her private and family life. This position has been taken several times by at least one human-rights tribunal. It would, therefore, seem to me that a ban predicated on one’s hairstyle interferes with the right to private and family life and would warrant justification. That justification would involve a discussion of Question (2) to (5) outlined above.

LEGITIMATE OBJECTIVE?

The objective presented by the school’s justification appears to be related to the maintenance of order and discipline as well as a precaution in the case of an outbreak of lice. I would think some cogent evidence would be required to show that the threat of lice caused by dreadlocks is a real and proximate threat by an expert in a related field, and I’m not entirely sure that this was the case. The very thought of dreadlocks = high risk of lice has a highly prejudicial ring to it. Also, it is hard to see what is indisciplined about dreadlocks.

RATIONAL CONNECTION?

If we assume that the school could successfully establish a legitimate objective regarding the prevention of lice and the existence of dreadlocks, the next question is whether the ban is rationally connected to preventing the outbreak. The answer here would be yes, if we work on that very hard-to-accept assumption.

LESS INFRINGING MEANS?

This limb of the test is often referred to as the ‘necessity test’, i.e., is the measure in question necessary? Even if having locks is equal to the increased risk of lice, are there not better ways of approaching the issue than a complete ban? If the risk of lice is caused by students playing around, could the students not be asked to wear their hair in a certain style to reduce the risk? Then, why just students with locks and not students with long, plaited hair? If the problem is a suspected lack of washing by the dreadlocked (which was apparently alluded to), why not implement some sort of passive monitoring of that issue? There seem to be a host of other ways to address the matter.

COST BENEFIT

Even if all the analysis above came out in favour of the school, the societal costs of banning dreadlocks in the home of the Rastafari religion/movement, where dreadlocks is a frequently worn hairstyle, must be weighed against the school’s perceived lice precaution. The religion of the student or parents matters not here. I would suggest that such a ban appears arbitrary and ought not to pass this limb of the test.

A RISK OF OPENING FLOODGATES?

An overstated myth among lawyers is that a certain ruling or line of thinking can ‘open the floodgates’ for certain types of conduct that are perceived to be undesirable. If, for example, a ban on dreadlocks is unconstitutional, what of a ban on pink Mohawk?

A distinction can, perhaps, be drawn between restrictions that can be categorised as fads and those that have a cultural and societal basis. As education administrators can readily attest to, fad-based behaviours that encourage what may be considered as unhealthy competition are discouraged, and on this basis, dreadlocked hair can be treated differently from a pink Mohawk, or a blonde Beyoncé-type wig. While dreadlocked hair ought to survive the above analysis, the pink Mohawk ought not to, leaving the proverbial floodgates intact.

Andre Sheckleford is a lecturer at the Faculty of Law at the University of the West Indies, Mona Campus, and a lecturer at Hart Muirhead Fatta, attorneys at law. Send feedback to andre.sheckleford02@uwimona.edu.jm.