Bert and Ayanna Samuels| Hopefield Prep – are rules just rules?

The recent decision of Hopefield Prep to deregister a three-year-old student because his hairstyle was in breach of the rules of the school has been the source of much comment in Jamaica.

The current media activism on social issues is at its zenith as it becomes increasingly difficult for state or private institutions to hide themselves from the intense glare of public scrutiny. Actions that decades ago could go unchecked are now subjected to the ever-present eye of the camera, Facebook, Twitter, newspapers, radio, and more. We also have a population that will no longer be satisfied with curbing their dissatisfaction within the confines of veranda talk.

Hopefield Prep, whether they realise it or not, operates an institution within the Jamaican landscape. What obtains within its protected boundaries is consequently of concern to the public at large. There are those who say we should leave the school alone as it is a private institution with freedom to make and carry out its own rules. They seek to make the distinction between the obligations of a state institution, or public school funded by our tax dollars, and a private school such as Hopefield.

In short, there is a call for us to respect Hopefield's privacy. However, those who are relying on that distinction must bear in mind that prep schools, private as they may be, are regulated by the State - that is the Ministry of Education - as far as their curriculum and staffing are concerned.

Further, whereas in the old days (Independence to 2011), that privacy argument, based on the school being a non-public institution, could have been convincingly made, not so, says the Charter of Rights, enacted in April of 2011. In 2013, two years after its promulgation, a case by a Jamaican citizen was brought against two privately owned television stations in Jamaica, accusing them of breaching his constitutional rights. Those private institutions unsuccessfully argued that they were absolved from being accused of breaching his rights in that they were not state-run entities. The court said not so and pronounced in clear language, relying on the 2011 Charter of Rights in Jamaica:

"By any analysis, the legislators have used words that make it plain that one private citizen can seek to enforce any right being infringed by another private citizen." (Per Justice Sykes, Para 201, Maurice Tomlinson v TVJ and CVM and another).

ERRONEOUS VIEW

So those who, out of possible ignorance of the law, are arguing that "rules are rules", have done so with the erroneous view that a private institution is free to set rules and implement them with impunity. If those rules breach a child's rights, those rules are not, and cannot be, classified as untouchable ordinances of a private school, but, rather, breaches of the inherent dignity of its students.

So what are the possible justiciable rights breached by Hopefield Prep?

Section 13 (1) (b) of the charter makes it clear that insofar as our fundamental rights and freedoms are concerned:

"... All persons in Jamaica are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and decorative society; ...".

According to Section 13 (3) (i) of the Constitution, one such fundamental right to which we are entitled is our right to freedom from discrimination on the grounds of race.

Therefore, any person or institution, private or otherwise, that allows a child of a particular race to grow his hair to a particular length but denies another of a different race the right to grow his hair at a similar height, is guilty of discrimination on the grounds of race.

So, by way of example, a Rastafarian private school could not dismiss a Chinese student who grows his hair 12 inches long while allowing a student with dreadlocks to grow his hair similarly. That school could not successfully argue that it is the "private school's rules", by reason of which the court cannot intervene.

It is worth repeating the observations of Justice Sykes in the aforementioned case of Maurice Tomlinson v TVJ and CVM when he looked down the road and posed the following rhetorical questions:

"Could it be seriously contemplated that in Jamaica, in light of the charter's reference to non-discrimination (Section 13 (3) (i), that a court in this country would enforce a private law arrangement based on explicitly racist considerations? Would a court, influenced by the charter, not say that any such provision is contrary to public policy? If so, would this not be indirect horizontal enforcement of the Charter?" Para. 208

On this matter, I wish to draw your attention to the accompanying Gleaner photo of three Hopefield students, published on Sunday, June 13, 2010.

LONG, STRAIGHT HAIR

Whereas Zavier's (the child at the centre of the current controversy) hair was short enough for the majority of his forehead to be visible, I cannot see the student to the left's forehead at all due to his long, straight, Caucasian-like hair. The student to the right's forehead is almost hidden, too, with his straight, Asian hair already at the top of his right ear.

Given that this Gleaner photo is dated 2010, it is worth noting that Hopefield's vice-principal - the person with whom it is reported that Zavier's mother interacted - is said to have been at the institution for more than 25 years.

Presuming that the school's rules regarding hair grooming did not only come about in the last six years, it would appear that where nature causes your hair to grow north, defying gravity, and bearing characteristics related to a West African nature, one set of rules applies, dictating that that hair must be cut and the strongest of actions - like denial of admission - may obtain, should you elect not to do so. But where hair grows south, those rules are waived.

So, no, the 'rules are not the rules' for everyone! This case also evokes a well-known way of thinking in Jamaica that there is 'good' and 'bad' hair. It would appear that there is different treatment for groupings at this institution. It is high time that we release this vestige of our slavery past.

DISCRIMINATORY GROUNDS

Second, for Hopefield to, without lawful excuse, deregister a child on the discriminatory grounds stated above is to effectively deny that child a right to education. To so deny a person his right to an education is, in my opinion, to subject him to degrading treatment prohibited by Section 13 (6) of the Constitution.

Call it what you may, but as already quoted from the Honourable Justice Sykes in the Tomlinson case, "by any analysis" the Charter of Rights now allows for one private citizen to seek to enforce any right being infringed on by another private citizen.

But the conduct of discriminating on the grounds of race is also governed by international law, that is, the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Jamaica in 1971, which provides:

Article 1 of the convention defines 'racial discrimination' as "... any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life".

As signatories to this convention, we have accepted, on the world stage, that we will not entertain, from any institution, be it state-owned or privately established, any form of discrimination whatsoever. Being part of the civilised world, we have an interest in making sure that no entity on our shores makes or enforces rules orthogonal to accepted and fundamental norms.

- Bert Samuels is an attorney-at-law. Ayanna T. Samuels is an aerospace engineer, and gender and ICT specialist. Email feedback to columns@gleanerjm.com andasamuels@alum.mit.edu.