School's ban on boy's cornrows is 'indirect racial discrimination'
UK Human Rights Blog, 20 June 2011
Most people have their first taste of injustice at school. This is hardly surprising: an institution containing hundreds of teenagers for whom rebellion is a biological imperative is always going to be difficult to control. In trying to do so, teachers sometimes impose petty rules.
Many children fantasize of an external authority intervening to expose the injustice of those rules, particularly in relation to modes of dress. But few take their school to court to challenge a policy on hairstyle. And even fewer win, as a young boy – known in this case as SG – has just done in the High Court. SG took his school, St Gregory's Catholic Science College of Harrow in Greater London, to court to challenge its ban on boys wearing their hair in "cornrows", or braids.
SG is of African-Carribean ethnicity and has since birth not cut his hair. It is kept in cornrows in accordance with his family tradition. In 2009, at age 11, he joined St Gregory's, by all accounts an excellent school, for his secondary education.
At the time, the school's policy did not explicitly ban cornrows (although, in a bit of unnecessarily complicated school policy language we can all recognise, it did allow extensions If for "Trichological reasons… see Head of Year”). But SG had missed his reception induction in which it was made clear the hairstyle was banned. A ban on "braids” was later added to the written policy, along with a more general prohibition on "peculiar and bizarre styles” which "are quite unacceptable".
The ban was not just about holding back the children's self-expression. The school claimed – with the sympathy of the court – that there were particular concerns in the area about gang culture, predominantly amongst young men. Some hairstyles "encourage that mentality". The aim is to make the school a place where children "are first and foremost safe and valued equally” and where they are taught to "see the school as a community in which are all (sic) equal and made in the image of God".
SG challenged the policy under race and sex discrimination law. In particular, under duties contained under section ("s.”) 71 of the Race Relations Act 1976 and s.76A of the Sex Discrimination Act 1975. By the time it reached the High Court, this was to be one of the first high-profile cases to be considered under the new duty contained in s.149 of the Equality Act 2010, which came into force on 5 April 2011 (the public sector equality duty). It should be noted that the judge saw no significant difference between the duties under the new law and those under the old.
The allegation made against the school was that it "indirectly” discriminated against SG on the grounds of his race and sex. Indirect discrimination is when an authority has a "provision, criterion of practice” which applies equally to people not of the same sex or race, but which puts one group at a particular disadvantage. To prove indirect discrimination, it is also necessary to show that the policy cannot be shown to be a proportionate means of achieving a legitimate aim.
Mr Justice Collins began by examining the history of cornrows in relation to race. SG relied on the evidence of Dr Richard Majors, a professor with a particular expertise in African, African-Caribbean and African American culture. He gave evidence that cornrows were worn for appearance and grooming purposes by slaves. Moreover,
Many slaves after capture who had their heads shaved for hygiene reasons – when free – grew their hair into braids or dreadlocks… in defiance of the slave master.
Cornrows have "intergenerational values” too, with hair-braiding being an "ancient art-form handed down from generation to generation". This was the case in SG's family too, where all men wear their hair in cornrows. SG said
I just don't see a problem with it. I have had my hair all my life. I really like my hair my brother and dad have cornrows and we all like it.
SG also mentioned his joy at seeing the footballer David Beckham sporting the style, which showed "he appreciated African hair styling, and that we are all the same underneath it all".
Mr Justice Collins rejected the school's submission that it was necessary to show a practice had "exceptional importance” to the person alleging disadvantage. That test was set out in the case of R(Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin), a case in which a sikh girl was found to have been discriminated against for not being allowed to wear a plain steel bangle, a sign of her religion, at school. Rather, Mr Justice Collins decided that the right question is as set out in the relevant law namely whether there has been a "particular disadvantage”. He expressly rejected the Watkins-Singh test:
I think, with the greatest respect to Silber, J, it may be that the need to show exceptional importance puts the threshold too high. Certainly there is a need to show particular importance: that is the word used, and it conveys a need for a high standard.
This aspect of the judgment may be the most controversial – for more, see the comments to this post below.
In this case there had been a particular disadvantage. And SG's family and social customs could straightforwardly be "part of ethnicity” within the meaning of the Equality Act. Since the school's policy restrcted his family and social customs, even if not deliberately, SG was at a disadvantage.
But was that disadvantage justified by a legitimate aim? Equality legislation imposes a requirement on public authorities to give advance consideration to issues of race discrimination before making any policy decision. In this case, no such consideration had been taken; not fatal to a defence but not helpful either. The school relied on the fact that there had been no complaints. But, the judge continued
The problem of course is to know why all who conformed and did not complain acted as they did… It may be that those who complied were prepared to accept the disadvantage in order to get a place in an excellent academic establishment.
And, whilst the aim of the policy was "clearly legitimate”, it was not justified. The school argued that if it was forced to allow an exception for racial or family reasons, other hairstyles, such as the skinhead hairstyle, would have to be allowed too. The judge rejected this:
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. There is, for example, not a shred of evidence to suggest that anything but choice could lead to a skin head cut.
The policy was therefore indirectly discriminatory on grounds of race.
The sex discrimination claim failed; cornrows for African-Caribbean girls were recognised as acceptable because they were a satisfactory means of keeping long hair neat and under control. This was an acceptable rationale.
SG's claim for damages will be dealt with at a later stage by a county court, who will have to consider whether and to what extent the school should reasonably have known the policy was discriminatory at the time of its application. SG has now left the school so the win will not at present affect him directly.
So SG lived out the fantasy of many schoolchildren in exposing the injustice of his teachers publicly and unequivocally. Some will say that this amounts to a heavy handed intervention by the High Court into a school policy which will lead to a number of copycat claims by children who feel that school simply isn't fair. But it is surely right that children know that discrimination law does not stop at the school gate.
The case may well be appealed, particularly given the rejection of the "exceptional importance” test set out in the Sikh bangle case, which will in practice make it easier to bring claims of this type. In the meantime, schools will be franticly reexamining their hair and clothing policies for potential discrimination and students dreaming of their day winning against their teachers in court.
SG v St Gregory's Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010)
Please click this link to see Legal Judgement document
Please click this link to see original article
The Guardian, 17 June 2011
An 11-year-old boy who was turned away on his first day at secondary school for wearing his hair in cornrows, has won his case at the high court after a judge ruled the school's policy resulted in "indirect racial discrimination".
The boy, now aged 13, was refused entry to St Gregory's Catholic Science College in Kenton, Harrow, north London in September 2009 because his hairstyle did not comply with the strict uniform policy. The school only allowed a conservative "short back and sides" hairstyle for boys amid concerns that other styles could encourage "gang culture".
But at the high court in London on Friday , Mr Justice Collins said that although the school's "short back and sides" policy was "perfectly permissible", it should have taken into account individual pupils' family traditions.
"There are a number of Afro-Caribbeans for whom cutting their hair and wearing it in cornrows is a matter of their cultural background ... and can work against them on the basis of their ethnicity," said Collins.
"There is no question of this school being in any way racist. This was an honest mistake ... it was an error. But I am satisfied that if the policy is applied without the possibility of exception, then it is unlawful. I have decided that there was unlawful indirect racial discrimination that was not justified."
The court heard the boy, known only as G, had not cut his hair since birth and wore his hair in cornrows as part of a family tradition. In a statement to the court, he said he was shocked at the school's decision, adding that all the male members of his family wore their hair in cornrows.
"I really like my hair and it's been that way all my life. This problem at school was the first time me and my mum ever talked about my hair, it's so normal to us ... I really like my hair, my brother and dad have cornrows and we all like it. I really don't want to cut it off. This was the first time I had to ask the question, 'what's wrong with my hair?'"
His mother told the court the style was "of great importance to his cultural and racial identity", adding that her son, who had been looking forward to starting secondary school, suffered a "major blow to his self-esteem" after being turned away minutes after arriving.
The school said the ban on the cornrows hairstyle was part of its strict uniform code designed to deter gang culture and create a safe environment for all its pupils.
Andrew Prindiville, who has been headteacher at St Gregory's since September 2008, defended the decision to adopt "a traditional schoolboy haircut or a 'short back and sides'", saying the school served an area where there was gun and knife crime, much of it gang-related, and haircuts were often "badges" of gang culture.
"Our uniform and haircut policy for students other than sixth formers is a critical part of our strategy for maintaining excellent behaviour, for keeping gang mentality out of the school and for ensuring that students do not adopt attire or haircuts that may encourage that mentality," he told the court.
Prindiville said that although there was no specific connection between cornrows and gang culture, any exception to the strict rules on hairstyles could lead to a breakdown in discipline.
"For example, the school ban on shaven heads is part of a conscious determination to avoid white boys, whether English or, say, eastern European, adopting any form of 'skinhead' styles with all the negative, and sometimes racist, connotations that go with this".
But Mr Justice Collins said the school, which is rated as excellent by Ofsted, must make exceptions in the future on the basis of ethnicity or cultural beliefs. The judge added that he would not rule if the boy's banning from the school was unlawful, adding that an ongoing county court case, if the family chose to pursue it, would decide that.
After the ruling, the family's solicitor, Angela Jackman, from Maxwell Gillott, said: "This is an important decision. It makes clear that non-religious cultural and family practices associated with a particular race fall within the protection of equalities legislation."
She added: "For G, wearing his hair in cornrows is a fundamental cultural practice, which would have had no adverse impact upon the school. His wishes, however, were dismissed by the school without any consideration. Whilst schools face the challenges of maintaining good discipline, a community environment and their particular ethos, this case is a reminder that they must do so within the boundaries of the law."
In a statement after the ruling, Prindiville and chairman of governors Alloysius Frederick said the school had always tried to ensure that its uniform policy was fair, and offered its best wishes to G and his mother.
"We believe that St Gregory's is a happy and successful school with highly supportive parents and with a student body fully reflective of the racial diversity of the local community."
They added: "[We are] naturally disappointed by this decision of the high court. St Gregory's is proud of its rich cultural and ethnic diversity, and is run on the belief that everyone at the school is equal and made in the image of God.
"The school's governing body will now consider whether to apply to the court of appeal for permission to appeal against the judge's determination."
In a statement to the court, G, who is now at another school, said: "I love my [new] school, everyone is different and the teachers only care that I am learning – they don't have a problem with the way I look."
Please click this link to see original article
BBC News, 18 June 2011
A London school's ban of the cornrows hairstyle resulted in "unlawful, indirect racial discrimination", the High Court has ruled.
Mr Justice Collins said the ban by St Gregory's Catholic Science College in Harrow was not unlawful in itself, but should have taken into account individual pupils' family traditions.
A 13-year-old boy, "G", was refused a place because of the hairstyle.
The school said it was "naturally disappointed" and may try to appeal.
"St Gregory's is proud of its rich cultural and ethnic diversity and is run on the belief that everyone at the school is equal and made in the image of God," it said in a statement.
Hero 'had cornrows'
G's African-Caribbean family claimed the style was of importance to his cultural identity.
He was refused entry to St Gregory's as an 11-year-old on his first day in 2009 because he had the cornrows style - with hair braided, close along the scalp.
He was forced to attend another school. He does not wish to return to St Gregory's despite the outcome of the case.
In a statement read out to the High Court at an earlier hearing, G said: "When I saw my idol, David Beckham, cornrow his hair, it showed me that he appreciated African hair styling, and that we are all the same underneath it all."
Mr Justice Collins, sitting in London, ruled that the hair policy was not unlawful in itself, "but if it is applied without any possibility of exception" such as in the case of G, "then it is unlawful".
'Fair' uniform policy
The judge said in future the school authorities must consider allowing other boys to wear cornrows if it was "a genuine family tradition based on cultural and social reasons".
Following the hearing, G's solicitor, Angela Jackman said: "This is an important decision.
undefined undefined undefined undefined "It makes clear that non-religious cultural and family practices associated with a particular race fall within the protection of equalities legislation."
The school said it had "always striven to ensure that our uniform policy, including that related to hair styles, is fair and equitable to the wide range of cultures which make up our school community".
The court had not decided G was treated unlawfully or that the school had been guilty of any kind of discrimination, it added.
Analysis by Dominic Casciani, BBC News home affairs correspondent
undefined undefined undefined undefinedThis judgement is an important development. It echoes some of the defining moments in British race relations, such as Sikh bus conductors' 1970s battle to wear turbans.
The issue at the heart of the ruling is not explicit religious or racial rights - but the broader and more subjective question of what is culturally conventional.
The boy said he was left asking what was "wrong" with the only hairstyle he had ever known, something he regarded as part of his core identity and family traditions.
So although the school never intended to discriminate, the High Court said it did so indirectly.
Schools want their pupils to regard each other as equals, rather than as distinct groups, living parallel - but separate - lives.
But St Gregory's attempts to confront that multicultural challenge, by minimising differences in appearance, inadvertently rubbed up against the law: they wanted to ensure equality - but one pupil lost out as a result.