Sat | Sep 19, 2020

No free-for-all - Judges rule there must be limits on freedom of expression in dreadlocks case

Published:Tuesday | August 4, 2020 | 12:27 AMLivern Barrett/Senior Staff Reporter
Sherine Virgo and her husband, Dale Virgo, outside the Supreme Court in Kingston on Friday, July 31.
Sherine Virgo and her husband, Dale Virgo, outside the Supreme Court in Kingston on Friday, July 31.

The lawsuit challenging a decision by a Jamaican public school not to enrol a then five-year-old girl because of her dreadlocks is about self-expression and not religious rights and freedoms.

That’s according to the full transcript of the controversial ruling of the Constitutional Court in the lawsuit filed against Kensington Primary School, located in St Catherine, and the Jamaican State by the parents of the minor.

The full judgment was made public late Monday even as it continues to stoke emotions locally and garner international attention.

The panel of three judges – Justices Sonia Bertram-Linton, Evan Brown, and Nicole Simmons – who heard the lawsuit also nudged lawmakers to consider enacting legislation governing dress codes in public schools.

“Perhaps the time has come for the legislature to remove this matter from the discretion of individual entities and give it the force of law,” the judges wrote.

“How far that is to be taken is a decision that must be taken by the policymakers.”

Last Friday, the Constitutional Court refused a number of orders and declarations sought by the parents of the now-seven-year-old based on claims that administrators at Kensington Primary threatened not to enrol the minor if she did not remove her dreadlocks.

“The constitutional rights of the second claimant [the minor] have not been breached,” the judges ruled.

Not about Rasta rights

In the 60-page judgment explaining their decision, the panel noted that the case was not about “Rastafarians being prevented from having their child attend a public institution because of dreadlocks worn out of religious observance”.

To support this, they noted that the family’s attorney, Isat Buchanan, acknowledged that the religious beliefs of both parents were never communicated to the school.

Further, the judges indicated that “the tenure of the case argued by the claimant’s attorney (Buchanan) was not one which was defending the abridging of religious freedom”.

“In fact, the claimant’s attorney openly stated 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 as to their expression and freedom, to choose how to wear their hair and not necessarily in keeping with any religious belief.”

According to them, the case is about a desire to have acceptance and accommodation of what is believed to be “a right to individual expression of a conscientiously held belief, based on a decision taken by an individual and their family, about their chosen mode of self-expression.”

“This, in and of itself, is 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,” they wrote.

They suggested, too, that this raised the spectre of a free-for-all in public schools

“Self-expression for many people varies from day to day, week to week, and I dare say from hour to hour, and take on wide and varied forms. I cannot envisage an orderly school society, and certainly not an institution run for the benefit of large numbers of children, often interacting in close proximity, where they are exempted from the rules of the school, simply on the basis of individual self-expression,” the judgment read.

“If that were so, except for religious and other personal idiosyncrasies, self-expression in their attire and adornment would potentially then, be just based on the student’s own, or their family proclivities, or the unstated choices of each of their parents for self-expression by their family, taken in their individual homes.”

The judges said they were “wary of opening what may be considered the floodgates” of self-expression applicable to school communities and the choice of adornment for students given the impact it would have on the core function of the educational institution.

“This may potentially mean that a student or their parent could wake up tomorrow and identify as whoever or whatever animate or inanimate object or personality they wish or identify themselves with any belief, and come to school ‘expressed’ that way in pursuance of their right of freedom of expression and a decision taken in the home,” the judges ruled.