Hey, teacher! Leave those cornrows alone
20 June 2011
Updated | SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010) – Read judgment
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.
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The judge’s ruling contains a number of contradictory comments and is at best confused, at worst irrational. The school has a right to have a uniform policy and apply it rigorously, making it known to current and prospective parents and pupils. Those who don’t like it can go to another school. But a policy should be sensible and pragmatic; it can still try to prevent gang cultures in the school without outlawing a particular hairstyle.
The boy and his parents should have been pragmatic too; adapt to the school rule; it’s only for a few years. Claiming a cultural reason for nonconformity opens the doors to all kinds of idiosyncratic clothing and adornments that would quickly ruin the ethos of the school and its behaviour strategy. And the judge, wearing his bright red robe and long (completely unnecessary) white wig should understand that uniforms can reflect a culture too. What exceptions to their uniform do High Court judges allow ?
To escalate this trivial matter to the High Court, and possibly to a further appeal, is where we go wrong. What a waste of court time. Not every argument should become a question of human rights to be judged by expert legal minds who feel obliged to rule between standpoints that are both valid but inherently subjective. Whether or not a haircut is appropriate in a school is a matter of opinion not law, and there is where it should remain.
Regrettably, I have a lot of sympathy for your position but your logic is plainly flawed. The school can of course have a uniform policy, no one is positing that they cannot. The problem of course is that the “uniform policy” should not act as a discriminatory bar to certain groups (eg a “no hat” policy that inadvertently captured sikhs or jews). In all honesty, the governing body of the school acted horrendously – the target of the policy was “unconventional” hairstyles – realising belatedly the conventional nature of braided hair and importantly that another group within the school was permitted to have their hair in that same hairstyle they played the “gang culture” card (as if any particular hairstyle is synonymous with gang culture).
You say the boy and his parents should have been pragmatic, they were. Without delay they made alternative schooling arrangements. However, for this specific boy – where I confess – unusually it was a “family tradition” for all the men in their family to wear their hair in the same style she felt it necessary to challenge that rule. The judge did not say that the school should not have the rule – he also I note, made no declaration that the rule was unlawful rather, he said that the slavish application of the rule without any exception was discriminatory and its difficult to see how it is not.
Is this a trivial matter? I don’t think so. A child’s schooling is a very important thing. Is it a “human right” – Art 13(b) of the ICESR says it is but your human rights point is misdirected as the rights claimed were under the race relations acts of the 70s more recently updated in the equalities act of last year. It is of course possible that any person who works ostensibly within deprived areas with high levels of criminality can become blinded by local stereotypes, can adopt local racial shorthand and engage in low level racism and discrimination. Sometimes this happens completely innocently without people even realising it. So if it takes a white upper class high court judge to tell a black chair of governors that the hairstyle of his forefathers is not gang related then justice has been done and more importantly local people will have their eyes opened to the fact that even well-meaning people can act in a discriminatory way. If the school pursues a further appeal I would say that is a waste of resources, it is clear that they may have a behaviour and uniform policy of their choosing but they must apply it in a non-discriminatory way.
@Frank Cranmer: I think it’s entirely elided the second limb of the Watkins-Singh test – which required that “the wearing of this item can be shown objectively to be of exceptional importance to his or her religion or race, even if the wearing of the article is not an actual requirement of that person’s religion or race“. Leaving aside the usual vexed question of defining “race” in this context, SG showed importance in the context of his family, not his race: at best, he showed that one minority within his race placed some importance on the hairstyle.
The divergence of opinion which the judgement reports doesn’t appear to support “exceptional importance”. Frankly, the judge’s reasoning begins to look absurd when he’s relying on an expert relaying a telephone conversation with a hairdresser, who says “I know a number of families in the Caribbean where it is taboo for young boys to have their hair cut“, and on the Chair of Governor’s statement that “I personally did not regard it as part of my culture or a badge of my ethnicity but I recognise that other people might take a different view about hair styles.”
The judge then says “Thus there is evidence that there are those of African-Caribbean ethnicity who do for reasons based on their culture and ethnicity regard the cutting of their hair to be wrong and so they need it to be kept in cornrows . It may be that those who regard it as an obligation rather than a preference are in a minority, but on the material before me I am satisfied that there is a group who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows .” What most concerns me about this approach is the degree of subdivision required to elevate that minority group to the status of a seperate race within the Watkins-Singh language. Apply the same principle to religion, and the Westboro Baptist Church’s “traditions” would qualify for protection.
More pointedly, apply the same provisions to religion and you run up against House of Lords authority. I struggle to see how this decision can possibly consistent with the decision in Begum. While the cases were argued against different bases (Convention rights in Begum; Equality Act 2010 in SG), those bases must surely be consistent? It would be bizarre if something which is not protected under human rights law can nonetheless receive protection under the equality statute.
It was submitted on behalf of the school that the boy’s evidence “…does not meet the test which… following observations of Silber J in Watkins-Singh, requires that the wearing of cornrows is for him a matter of exceptional importance [per Collins J at para 28]. The reference is to the following passage in Watkins-Singh, R (on the application of) v Aberdare Girls’ High School & Anor [2008] EWHC 1865 (Admin) (29 July 2008).
“… I believe that there would be a ‘a particular disadvantage’ or ‘detriment’ if a pupil is forbidden from wearing an item when (a) that person genuinely believed for reasonable grounds that wearing this item was a matter of exceptional importance to his or her racial identity or his or her religious belief… ” [para 56].
The item in question was a Sikh kara bangle.
Collins J concluded that “with the greatest respect to Silber J, it may be that the need to show exceptional importance puts the threshold too high” [para 37]. Has that lowered the threshold set in Watkins-Singh?
Middlesex – where’s that? Harrow is a London Borough.