Editorial | The right to locks

The Gleaner welcomes, and fully embraces, this week’s Court of Appeal’s rulings in the ZV/Virgo case.

We hope it signals an end to the periodic attempts by Jamaican schools to exclude children, usually black ones, on specious grounds of improper grooming, because of how they wear their hair. Usually, it is either locked, in Afro, or some other style that fits naturally with black people’s hair.

Which was why four years ago, we urged the Virgos, Sherine Virgo and Dale, the mother and father, respectively, to appeal the ruling of the Full Court, which upheld the right of Kensington Primary School in Portmore to deny their daughter a place because of her hair.

We felt then that the Government’s legal posture in the matter should have been, on the essential points, supportive of the Virgos, and be willing to finance their appeal.

In an environment in which a high proportion of government primary schools have reputations for low educational outcomes, Kensington Primary stood out for quality performance. It was sought after.

In 2018, Sherine Virgo successfully registered her daughter, referred to in court documents as ZV, for Kensington. The child was then six.

The “contract” signed by Ms Virgo did not speak to Kensington’s hair policy. However, she was subsequently told that ZV, who had been allowed to attend pre-term orientation sessions, could not formally start school.

FAIR BALANCE

Kensington’s declared reason for the policy was that some parents did not adequately groom their children’s hair, which in the past has caused infestations of lice and ‘junjo’, a Jamaican term for fungus, at the school.

Jamaica’s education regulations allow the exclusion of students if they are suffering from “communicable diseases of infestations”.

Noted the Court of Appeal: “The school, having decided to exclude ZV from attending because she wore dreadlocks, without evidence that she was suffering from lice or fungal infestation, did not strike a fair balance between her exclusion and the justification. Accordingly, excluding ZV was unlawful, but it did not amount to a denial of her right to education since she was free to seek education at another institution. In these circumstances, the Full Court’s finding that the policy did not breach ZV’s right to education is correct.”

However, the appeal court, in a judgment written by its president, Patrick Brooks, held that the policy infringed ZV’s constitutional right to equitable treatment.

“The policy discriminates against people who wear dreadlocks and that treatment, being both negative and different from the treatment meted out to other students at the school, amounts to inequitable treatment,” Justice Brooks wrote.

He added: “The evidence is that the school developed the policy because of incidents in the past of unhygienic practices relating to certain hairstyles, including dreadlocks, resulting in an outbreak of lice and fungi ...

“ZV wears dreadlocks, but there is no evidence that her hair suffers from unhygienic practices that would cause disruptive behaviour or a breakout of lice and fungal infestation, or that her hairstyle posed such a risk over and above the risk from hairstyles worn by other children at the school. The policy purports to treat her differently from other students because of her hairstyle and is, therefore, discriminatory. The fact that she was not singled out for exclusion from amongst other students who wear dreadlocks or braids to the school, is not decisive of the issue.”

RIGHT TO FREEDOM OF EXPRESSION

Ms Virgo had insisted that the wearing of locks was part of her family’s existence and identity, and was in keeping with their Nazarene religious beliefs, although the question of the Virgos’ religion was not raised with the school. The Full Court, however, held that the policy would not have infringed ZV’s right to freedom of expression “if the reason her hair is locked is simply a decision as to self-expression that her parents have taken as an adornment applicable to manifest their lifestyle”.

But the Court of Appeal said: “The Full Court was wrong to find that the policy did not infringe ZV’s right to freedom of expression. The dreadlocks were the physical manifestation of the expression of a Nazarene lifestyle, which was the content.

“While the matter of whether ZV was expressing a religious belief by that hairstyle has not yet been determined, what is certain is that there is sufficient evidence from ZV’s parents that ZV wore the dreadlocks to express her existence and identity. ZV’s right to freedom of expression was therefore engaged.”

This matter of hairstyles in schools, and the discriminatory policies especially against students who wear locks, has been a recurring theme in Jamaica for decades. In the past, it was primarily used as a cudgel against members of the Rastafarian faith. More recently, stylised locks, rather than the free growth of hair of some Rastafarian sects, has become increasingly mainstream and globally fashionable.

But the interpretation of what is allowable, and respect for people’s right to freedom of expression, remains unresolved, and still problematic in many Jamaican institutions, including schools.

Last year, the education ministry circulated a grooming policy that prohibits “discrimination against natural hairstyles ... regardless of gender or ethnicity ... discrimination against African-centred, and other culturally specific hairstyles and headwear”.

The ministry must now circulate Justice Brooks’ judgment and must make it mandatory reading for chairs of school boards, principals and deans of discipline.