Rahym Augustin-Joseph | Virgo revisited: The Jamaican Court of Appeal decision unpacked and discussed

THE SUPREME Court, in Virgo v Board of Management of Kensington Primary School, initially ruled that a policy prohibiting dreadlocks, of which the parents were aware of prior to the claim, did not violate constitutional rights, including the right to self-expression. It also did not violate religious freedom, as the parents did not inform the school of the religious purpose of the dreadlocks. However, the Court of Appeal later reversed some of the findings, ultimately holding the policy as unconstitutional, which this article explores briefly.

The Court of Appeal first examined whether the High Court erred in its consideration of the alleged breaches of Charter Rights. The court reaffirmed that judicial interpretation of constitutional breaches should aim to expand human rights through a generous approach, rather than a restrictive one that diminishes rights.

The High Court’s approach, as pointed out by Adalia Nembhard and Raashad Brathwaite, in a previous op-ed, reinforced historical policing of physical appearance rooted in colonial standards, rather than promoting an evolutionary course of action. They criticised the court for failing to appreciate that rights are inherent and that it is the restrictions that need to be justified, not the rights. The Court of Appeal corrected this approach, requiring the claimant to show a breach, after which the State can either reject the claim, or that the limitation was demonstrably justified on the grounds of public safety, morals, order, etc.

FREEDOM OF EXPRESSION

On the matter of freedom of expression, cases like Quincy McEwan and others v The Attorney General of Guyana from the CCJ were utilised, where it noted that how individuals dress and present themselves can be an expressive statement protected under the right to freedom of expression. Similarly, cases from South Africa highlighted that hairstyles can be a mode of expression.

However, the court, aligning with the High Court and other cases like Alexander Elliott v St Mary’s College, in Saint Lucia, held that while hairstyles can be a form of expression, they must be rooted in a clear intent or ideological conviction to merit constitutional protection.

This raises questions about whether expression must always be tied to a deep conviction. Can it not suffice that the freedom inherent in the right is the ability to choose without a need for a profound ideological basis? Should expression evolve, and must it be linked to historical movements or religious beliefs? In the Caribbean context where dreadlocks have become part of the social fabric in both ideology and fashion, is it not concerning that the court determines what constitutes sufficient ideology to warrant protection?

The stance on expression suggest that black hair only matters when it is tied to an ideological movement, particularly as others may wear their hair in different styles without being policed or required to justify with ideology. It is probably so, because we have become modern-day neocolonial overseers, who reinforce the belief that any expression of blackness must be repressed, justified or contained to fit the somatic norm image of the ruling classes in our society.

NAZARENE BELIEFS

Fortunately, the claimants’ dreadlocks were tied to their Nazarene beliefs, making the policy an infringement on their expression, according to paragraph [78] of the judgment. What, however, will be the fate of other non-believers?

The court declined the OCA’s request for a declaration that general rules and exemptions for school grooming should be formalised, citing concerns about breaching the separation of powers. However, the need for such formalisation remains pressing, and the Ministry of Education should seek inspiration from progressive approaches, such as those advocated by Hon Dee-Ann Kentish-Rogers of Anguilla and Dr Carolyn Cooper.

On freedom of religion, the court did not determine whether Nazarene is a religion, but agreed with the High Court that there was no breach because the school was not informed that Virgo’s locks were worn for religious purposes.

The claimant also argued that Virgo was discriminated against. The court found that there was no evidence her hairstyle posed hygienic issues that warranted different treatment, thus treating her differently was discriminatory.

RIGHT TO EDUCATION

The court also rejected that the policy breached Virgo’s right to education as there is no right to attend a school of choice, but the limitations of attendance – hygiene must be for a legitimate purpose, of which it was.

It is telling how post-colonial states whose ancestors were denied education, could now find it apropos to refuse entry to schools on the basis of colonial myths of ‘hygiene’, as opposed to articulating the least restrictive means of engaging students. It is also the view of this writer that the higher level of analysis for infringement of freedoms must now consider the extent to which a frustration of a right can be a breach.

To elevate expulsion to a denial of education, the court must balance exclusion with justification. Here, exclusion was unjustified due to lack of evidence, that the hair caused lice or fungi, but still did not breach educational rights as she could have gone to another school. If there were such evidence, it would only be justified to exclude her for the period of the disease.

Another constitutional freedom pleaded was the respect for, and protection of, private and family life and privacy of the home. The court noted that the right was not breached because the school was not informed.

Recognising that certain fundamental rights were breached, the court considered whether the restrictions of the rights were justifiable for the benefit of the wider society.

LICE AND FUNGI

The State justified banning dreadlocks, except for religious reasons, due to past altercations and concerns about lice and fungi.

The State did not provide medical or scientific evidence that Virgo had poor hygiene, or how the lice and fungi infestation were as a direct result of dreadlocks. One also has to question whether lice vanish for students who enjoy exemptions for religious purposes; or are some rights more sacrosanct than others?

The court held that this measure was not reasonable because it would not necessarily prevent the outbreak of lice and fungal infection, because there is no evidence that other hairstyles would not cause it. The State seemed to be reinforcing the trope of the unhygienic nature of black hair and that black hair needs to be tamed for acceptance.

What is required is that the people of Jamacia must engage in a deep conversation about the formalisation of grooming policies in schools, and reversing this preoccupation of our institutions with policing dreadlocks, irrespective of how intrinsic it is to the Caribbean.

Rahym Augustin-Joseph, is from St Lucia and a bachelor of laws student at UWI Cave Hill. Send feedback to rahymrjoseph9@gmail.com and columns@gleanerjm.com