In a earlier article entitled “Black Hair Matters” revealed right here on September 21, 2022, I registered my discontentment with those that, when points which encompass our identification abound, try to justify archaic notions with the shallow response “it’s the rule.” I famous then, that the denial of a younger St. Mary’s Faculty pupil entry to schooling on the idea his hair was not correctly groomed was counter-productive. Whereas the rule didn’t explicitly discriminate in opposition to any explicit ethnic group, the anecdotal proof all the time suggests the inherent prejudice in opposition to black hair meant that the policing of black hair was disproportionately increased. As I famous in my earlier commentary, one solely had to have a look at the sample of whose hair was blacklisted to find out the objectivity and neutrality of the rule. This was all the time primarily based on the colonial thought of what was or was not a factor of magnificence.
Nevertheless, I did additionally assist the notion of difficult this provision of the SMC’s Code of Conduct, and the courtroom making an inquiry into whether or not it’s appropriate with the basic rights and freedoms inside the Structure of Saint Lucia. Effectively, the decision is in, and the place of the legislation appears to mirror the precise sentiments held within the Jamaican case of Virgo v. Administration of Kensington Main Faculty, which held {that a} college coverage prohibiting dreadlocks as a coiffure doesn’t violate Constitutional rights, together with self-expression because the dad and mom had not knowledgeable the varsity that the kid’s hair was a manifestation of their Rastafarian beliefs and the varsity had not advised the dad and mom that there was an exception to the coverage on the grounds of faith. The courtroom famous in that case, at paragraph 155, much like this case, that a person can not range the foundations of an establishment just because they don’t match inside their decisions and mode of self-expression and held that the varsity’s coverage was not an infringement of the kid’s proper to freedom of expression.
Now that the judgement the case of Alexander Elliott vThe Board of Administration of the St.Mary’sCollege and the Lawyer Common of Saint Luciais obtainable, it is very important talk about it in some element in order to understand the character of freedom of expression beneath our Structure, and the way the courtroom arrived on the conclusion that the rule didn’t violate their proper to freedom of expression.
Merely put, a pupil on the St. Mary’s Faculty was denied the power to entry schooling because of the breach of Rule 1.19 of the varsity’s Code of Conduct, which mandated that “college students’ hair have to be correctly groomed always [and] at no level ought to college students’ hair be multiple centimeter lengthy or excessive.” If a pupil doesn’t adjust to this rule, the Code of Conduct gives for a collection of punishments, inclusive of however not restricted to detentions, written warnings, sending college students house till they’ve complied, banning of scholars from taking part in video games and assembly with dad and mom to resolve the failure to conform. His non-compliance nonetheless precipitated him to be “faraway from all lessons and he was instructed to name his dad and mom to chop his hair till he made the required modifications to adapt with the rule” in accordance with paragraph [4] of the Judgement.
His dad and mom refused to conform, with out offering their causes. As an alternative, they approached the Excessive Courtroom claiming that Rule 1 violated the kid’s freedom of conscience as per part 9 of the Structure, freedom of expression as per Part 10 of the Structure and human dignity. Additionally that Rule 2 was not in conformity with the UN Conference of the Rights of the Baby, that Rule 3 ought to be struck down and laws mandating the compliance of all colleges with the provisions of the Structure be so ordered.
It’s by now frequent data that to ensure that one to claim that there was a violation of their elementary rights and freedoms established beneath the Structure, that contravention have to be executed by the state or any of its brokers. On this case, it was concluded that, the St. Mary’s Faculty, albeit not a public school- operated and owned by the state, was an assisted college who operated with the help of state funds and sources. It meant that they might be labeled as a state agent, as there was heavy involvement of the state in lots of points of its operations and upkeep and will simply be labeled as a public college as per paragraph [20] of the Judgement.
The kernel of the case nonetheless, turned on whether or not the rule violated the liberty of conscience of the coed. What’s freedom of conscience anyway? Freedom of Conscience as established beneath Part 9 of the Structure gives that “an individual shall not be hindered within the enjoyment of their freedom of conscience- which incorporates freedom of thought, faith, altering his or her faith or perception and freedom.” This Freedom nonetheless, much like the entire others can solely be restricted when the pursuits of defence, public security, public order, public well being, and others require, and different cases in relation to faith and academic establishments. Primarily, freedom of conscience consists of the power to assume, and do as one select, however that this thought isn’t the identical as an opinion and a perception. The Perception have to be severe, coherent, and vital so as to be protected.
The claimant subsequently argued that by forcing the kid to chop his hair took away his freedom to type his personal ideas and imposes the ideas of the Board of Administration, subsequently defeating the appropriate afforded to the claimant. The courtroom agreed that freedom of conscience does allow that the minor can maintain the idea that he ought to not reduce his hair. Nevertheless, the courtroom concluded that, in rejecting the arguments on this provision in paragraph [43] of the Judgement that, “it’s not each opinion that rises to the extent of perception and is shielded by the Structure.” The courtroom famous that this opinion that his hair shouldn’t be lined was not severe or vital sufficient when balanced with the pursuits of making certain the orderly and environment friendly self-discipline of the school. Whereas a balancing act of particular person rights versus the pursuits of the broader neighborhood is all the time on the coronary heart of our notion of rights, as your rights are solely proper to the extent that it doesn’t have an effect on others, the courtroom didn’t adequately interrogate the character of the rule so as to confirm whether or not it in truth ensured self-discipline and order, as claimed by the varsity. It appears subsequently that the courtroom is making an attempt to position a valve and situations, with out going additional on what may be labeled as ‘vital and severe beliefs’ that one should maintain so as to rise to Constitutional significance. However it’s not shocking due to the courtroom’s reliance on the Virgo case. Furthermore, the courtroom held that for the selection to be revered, it should have been communicated and that one couldn’t count on or assume what profit the claimant is searching for to advance if it was not communicated particularly after being requested quite a few occasions by the Faculty Principal.
Primarily, the courtroom held on this level in accordance with paragraph [51] that
“In a phrase, the claimant’s failure to speak the explanations for his non-compliance stripped him of any declare to a breach of freedom of conscience as it could be an affront to logic for the Board to be held answerable for a breach it had no thought it was perpetrating.”
On the query of whether or not the rule breached freedom of expression beneath Part 10 of the Structure, it is very important first set up the scope of the appropriate. Primarily, the appropriate consists of the the liberty to carry opinions with out interference, to speak concepts and data with out interference, whether or not to the general public or to any individual or class. Ofcourse, the exceptions to this inherent proper stay the identical, inclusive of the appropriate to not defame others or different issues required in a democratic society. Instances similar to McEwan from the CCJ reminded us that an individual’s alternative of apparel is sure with their determine and expression. Virgo even famous that hairstyles worn with intent could also be thought of expression.
Nevertheless, the courtroom concluded that as a result of the minor didn’t put on his hair to speak a message, it couldn’t type a part of the liberty of expression. The courtroom was primarily, inserting a valve and condititions, with out going additional, and noting that the power to precise onself should have an underlying deep conviction and ideological backing whether it is to be protected by the Structure. It could merely be a case of black hair mattering solely when black hair issues.
However, what would that deep conviction be? Can it not suffice, that the liberty inherent in the appropriate is the power to resolve what one needs to do with none want for a deep conviction? Want there be a deep conviction? What is that this threshold, and should or not it’s akin to carrying one’s hair for statements throughout the Black Energy Motion, or as a part of the Rastafarian Faith? The issues inhereint within the claimants case might have been that no proof was offered to point out the underlying rationale for not wanting to chop one’s hair, particularly in circumstances the place not like Virgo, the coiffure in query can’t be straight attributed to any ideological backing. It was not locks which was in query. The courtroom nonetheless left the query open on what can be the character of the intent which have to be proven so as to show that it’s a constitutional infringment.
However, the courtroom didn’t solely cease there, however famous that there should have additionally been communication of that deep conviction for one to be exempted from the rule. The courtroom famous and quoting extensively from different circumstances on comparable topics that, “it has not been established that the claimant has been prevented from expressing a specific opinion or thought via his hair.”
Additional, the courtroom held that the varsity glad the exceptions to the infringment of the appropriate if there was any infringment, in that the rule was fairly justifiable in a free and democratic society. Primarily, the courtroom famous that the rule was justifiable as the idea of the rule was to (1) uphold the ethical traits and traditions of the varsity which is the muse for the success of the scholars, (2) to keep away from distractions and keep away from copycatting habits, (3) the rule with the 1 centimetre rule is goal and takes away the subjective utility, (4) promotes efficient educating and studying at school, (5) it’s not primarily based on irrational and arbitrary issues and has lengthy achieved the aim of sustaining order and self-discipline on the schoo which has contributed to its stastus because the primary college and (6) it’s utilized equally to everybody and gives allowances to college students by speaking to the varsity and they are going to be given depart to put on their hair as is.
However, what’s problematic in regards to the justification of the rule is the shortcoming to point out how the rule contributes in direction of order and self-discipline, and the way the preservation of that exact rule in query, has contributed to the success of scholars and the varsity. Is it the underlying notion of following guidelines which gives the order or compliance with this rule particularly? It is usually questionable as to the colonial undertones that permeates by the notion of hair being a distraction, provided that we settle for that the policing of the hair is finished extra to black college students than different ethnicities. As I discussed in a earlier article, black hair is to be accepted in colleges, whether it is tamed and alternatively, the fact is that college students of different ethnic teams are allowed to painting the great thing about their hair in its pure state with out the wrath of directors and different members of the newly replenished colonial class. However, what in regards to the different grooming codes which have been reviewed in international locations like Trinidad and Tobago, which give for Afros inside college, are they too to not be involved in regards to the distraction which may ensue from ‘free black hair’?
Additional, the character of the rule can nonetheless be seen as arbitrary and irrational as a result of albeit the 1 centimetre has taken away subjectivity, the willpower of 1 centimetre which isn’t primarily based in any logic or scientific understanding may be seen as arbitrary and irrational. A quantity plucked from skinny air.
However what’s additional problematic about this strategy is is what my colleauges Ms. Adalia Nembhard and Mr. Rashad Brathwaite have described in their very own evaluation and commentary on the Virgo case because the graduation of the case on the mistaken place. Primarily, “Moderately than act as a pivot for an evolutionary plan of action, the courtroom strengthened the historic policing of bodily look deeply rooted in colonial requirements. The courtroom failed to understand that rights are inherent. They failed to understand that it’s restrictions that need to be justified and correctly engaged. Not rights. Due to this fact, it ought to have been the State’s obligation to point why the varsity’s restrictive coverage was justifiable.”
Equally, there was no full comprehension of the ‘why’ underpinning the restriction on the appropriate by the varsity’s rule, however as a substitute an acceptance of the place for what it’s. There was no interrogation of the rule itself, to see how and if it really maintains self-discipline, order and if isn’t arbitrarily utilized.
In the long run, the case strengthened the place that I’ve held in earlier Articles on this topic, however there may be hope that this may be settled out of courtroom and may be addressed within the new college grooming coverage.
