Case Summary: Dale Virgo and ZV v Board of Management of Kensington Primary School, Minister of Education and Attorney General of Jamaica [2020] JMFC Full 6

Constitutional law – Freedom of religion – Equality before the law – Right of every child to such measures of protection as are required by virtue of the status of being a minor or as part of the family – Right of a child to publicly funded tuition in a public educational institution at the preprimary and primary levels – Equitable and humane treatment – Respect for and protection of private and family life and privacy of the home – Freedom of expression – Freedom from discrimination 

ISSUES:

Whether the stated policy of Kensington Primary school of, “No braids, no beads, no locks” violated the constitutional rights of the claimant as pleaded. 

Whether a decision as to a choice of personal expression, taken by a child and their family can be imposed on a school in contravention of school rule and policy.

FACTS:

In or around April 2018, the parents of the second claimant ZV, a minor, applied for a place at the Kensington Primary School, in the parish of St. Catherine. During an orientation session attended by the minor and her mother on or about July 9, 2018 the mother was presented with a school rule handbook. The mother then became aware of the school’s ‘no braids, no beads, no locking of hair’ policy, which was an unwritten but enforced rule. The mother of the minor was told that if she did not remove the minor’s locks or have them cut there was the possibility that the offer of a place at the school could be withdrawn. 

Upon asking, the reason given for the no locks policy was one regarding sanitation, health and safety, owing to past experiences at the school with lice and “junju” (understood to mean fungus) infestation in students with locked hair.  Neither parent of the minor intimated to the school that there was a religious reason for the hairstyle, and the school did not alert the parents to the fact that religious exemptions could be granted. By way of Notice of Application for Court Orders the parents of the minor sought an order restraining the defendants from denying the minor’s attendance to Kensington Primary School for the academic year commencing September 2018. An order was subsequently granted restraining the first and second defendants from denying the minor’s attendance at the school until the determination of the constitutional claim brought herein. The school maintained that the child was never actually barred from attending.

The first claimant, the minor’s father and the second claimant, the minor by next friend and mother, pleaded that the school’s “No braids, no beads no locks” policy infringed the following constitutional and statutory rights of the minor child:

a. The right to freedom of expression [s 13(3)(c)];

b. The right of equality before the law [s 13(3)(g)];

c. The right of every child to such measures of protection as are required by virtue of the status of being a minor or as part of the family, society and the State [s 13(3)(k)(i)];

d. The right of every child who is a citizen of Jamaica, to publicly funded tuition in a public educational institution at the pre-primary and primary levels [s 13(3)(k)(ii)];

e. The statutory right to enroll in and attend school as provided for at Section 28 of the Child Care and Protection Act;

f. The right to equitable and humane treatment by any public authority in the exercise of any function [s 13 (3)(h)];

g. The right to respect for and protection of private and family life, and privacy of the home [s 13 (3)(j)(ii)]; 

HELD:

The first claimant, the minor’s father, had no justiciable claim that a personal right of his had been infringed or was likely to be infringed. It was determined that he had no standing and therefore, he was struck from the matter. The constitutional rights of the second claimant, as pleaded, have not been breached and the second claimant is not entitled to the declarations of breach or unconstitutionality sought.

There could be no finding that the right to equality before the law had been engaged, let alone infringed as the policy in question does not meet the criteria, it not being a law.

The right of a child to such measure of protection required by virtue of the status of being a minor or as part of the family, society and the State was not proved to have been infringed. Evidence was not sufficiently lead to satisfy the court that this right had been infringed, as no evidence was lead regarding the minor’s reaction to the no locks policy or the suggested course of action of cutting her hair or removing her locks. Further, there was no justiciable physical or mental harm that could have been caused by the policy as the withdrawal of the minor’s acceptance to the school never materialised and the minor’s hair could not and would not have been cut without the knowledge and consent of her parents.

While all public education institutions in Jamaica, at the primary and pre-primary levels, have a duty to provide students with education in accordance with the national curriculum, there is no right to access education at a particular institution. Thus the minor’s right to publicly funded tuition in a public educational institution at pre-primary and primary levels has not been breached. 

Owing to a failure to show how the minor has been treated differently from other students in the same or similar position, it cannot be held that the minor’s right to equitable and humane treatment has been infringed by the defendants.

The claimant failed to prove to the Court that the minor child’s family’s wearing of locks was an expression of the family’s identity, nor was this ideology disclosed to the school. Accordingly, the claimant has not suffered any interference with her right to respect for her private and family life. She has not been prevented from exercising her right to private and family life and the right has not been engaged in this case.

It cannot be assumed that everyone with hair adorned in locks is doing so in furtherance of religious expression or any expression at all. As no religious adherence was declared and then curtailed by the defendants, the right to freedom of expression was never engaged, nor was the right to freedom of religion engaged.

RATIO DECIDENDI:

It is settled practice in all schools throughout the island that religious diversity in terms of adornment, of the various children who attend school is accepted and accommodated, including Rastafarians. There is always the choice, to raise one's child according to whatever decisions and beliefs one has determined to be best for one’s home and family. Similarly, organisations such as workplaces and schools have the right, and the corresponding responsibility, of configuring rules to govern their environment, to benefit all who use them. 

Schools cannot be run without rules for the various constituents that make up the school population. It cannot be right or just for each individual to vary the rules of engagement with schools or with any organisation, without proper reason or justification, simply because a right exists to participate and avail oneself of the benefit of publicly funded institutions. It also cannot be right for one to vary the rules of engagement with an organisation, simply on the basis that the organisation’s policy does not fit in with one's choices and mode of self-expression. Self-expression for many people vary from day to day, week to week, and from hour to hour and take on wide and varied forms. There can be no orderly school society, particularly one run for the benefit of large numbers of children, where students may be exempted from the rules of the school, simply on the basis of individual self-expression.

By Marc Ramsay (Partner) with Charlene Buchanan (Intern)