A family’s relief

Reflecting on her daughter’s dreadlocks case that captured national attention six years ago, a St Catherine mother is asserting that the latest court declaration that the school’s policy violated her child’s constitutional rights indicates that Jamaicans are no longer in “shackles”.

“We are independent and free for a reason. We no longer have to behave like we are in shackles and behave as if we are way back in the ‘60s and the time before that.

“... We are not going to go overboard and do certain things outside of bound, but a simple thing like wearing your hair in the natural state that God made it should be something that you must be free to celebrate,” a relieved Sherine Virgo said following the ruling.

The Court of Appeal on Monday reversed the Supreme Court’s July 2020 decision, which found that the school’s grooming policy had not breached the constitutional rights of the child, referred to as ZV, when the administrators ordered that her locks be cut for her to attend the school.

Outgoing Court of Appeal President Justice Patrick Brooks, in handing down the landmark ruling, said, “It is declared that the policy of the board of management of Kensington Primary on the wearing of dreadlocks hairstyle has breached the following rights as they related to ZV.”

The judge noted that the child’s right to freedom of expression and the right to equitable treatment by a public authority in the exercise of any function were violated.

The school’s grooming policy had barred the wearing of locks, braids, and beads, but there was an exception for dreadlocks on religious grounds.

The child and her father, Dale Virgo, had filed a claim against the school, the education ministry, and the attorney general; however, ZV’s mother appeared on her behalf. The claimants contended that ZV’s rights, including freedom of expression, freedom of religion, the right to equitable and humane treatment and respect for and protection of private life and privacy, were breached.

Kensington Primary had argued that they barred ZV because her hairstyle could lead to an outbreak of lice and fungal diseases.

But the Court of Appeal Court said the lower court was wrong to find that the policy did not infringe the child’s right to freedom of expression.

“The dreadlocks were the physical manifestation of the expression of a Nazarene lifestyle ... . 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,” the judges said in the judgment.

But the court noted that in assessing the breach, it has to determine whether the reason given by the school was justified. It found that there was no proper justification and pointed out that the Education Regulations cover how students should be treated if they are suffering from an infestation.

It also ripped into the school’s claim that ZV’s hairstyle could lead to health and hygiene issues.

“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 judges said further in the judgment.

The appellate court, however, agreed with the lower court that the right to freedom of religion was not engaged.

“The grounds of appeal, which are based on the issue of freedom of religion, cannot succeed since ZV had not notified the school of her religious beliefs, nor had she asserted a right to freedom of religion. Once notified, the school promptly conceded that the policy did not apply to her,” the court ruled.

The court also found that there was no denial of ZV’s right to education as she could have attended another school.

Meanwhile, the Court of Appeal upheld the lower court’s decision that Dale, who was listed as the first claimant, had no right or capacity to bring the claim.

Reacting to the judgment, Sherine said, “We feel very happy that the court has made the right decision. It has been a very long and stressful road.

“We see this happening at the start of every school year – another student being refused [entry] because of their hair – and so we are happy that we had the voice and the support to really push this to victory,” she said.

“I hope no other child will have to go through this and be refused education based on how their hair looks or whatever religious beliefs they have,” she added.

Sherine said although it was a recurring issue, it was different when it happened to her child.

“Never in a million years had I imagined that I would have done something like this and when it happened it really hurt,” she said.

Sherine said that she was really disturbed by the situation as her child never wore her hair in any provocative hairstyle or colour and that her hair was always properly groomed. As a result, she had to challenge the policy.

She, however, noted that her fight was not a personal attack on the school and that her child, who had attended grades one and two at the school, made a lasting impression while there as she was first in her both classes and the teachers were wonderful.

“It doesn’t matter how you looked and how your hair looked, that is not the important thing that we should be focusing on; it’s how we can shape young minds for the future,” she reasoned.

In the meantime, Jamaicans for Justice Executive Director Mickel Jackson, in welcoming the decision, said the human rights lobby was concerned about the latitude that the lower court ruling would have afforded schools in their grooming policy and that this ruling is a “big win” to guide schools in how their rules are to be drafted and to ensure equity across racial and ethnic groups.

However, she said, “We are disappointed that the court did not challenge the premise of the right to an education was breached as we find it unreasonable that a child can be locked out of school based on an unjust rule.”

Jackson, in the meantime, is urging the education ministry to ensure that the grooming policies are more prescriptive with clear guidelines.

“We are still hearing complaints that children of Rastafarian faith still see their rights being breached and being denied entry to schools. While uniformity and hygiene are important, they should not be grounded in prejudice and discrimination,” she said.

Attorney-at-law Isat Buchanan, who had represented the Virgos in the lower court and was the instructing counsel in the case at hand, hailed the case as a victory for entire Jamaica while emphasising that the court “got it right”.

“I am very pleased with the outcome of the recognition of human rights, in particular freedom of expression and equitable treatment as it relates to dreadlocks, Rasta, and Afro identity in modern Jamaica,” the attorney said.

Pointing to the significance of this ruling, he said, “It is a recognition that people with Afro identity and minority groups are afforded human rights in the Jamaican space.”

He also lauded the ruling as a significant advancement towards the jurisprudence’s Charter of Human Rights and a landmark decision that will spark conversations about other entities – private and public – having respect for freedom of expression of other persons.

“As a member of the Rastafarian community and the son of Big Youth, I can now say it is a happy day for Jamaicans, especially before Independence not long from now,” Buchanan said.

King’s Counsel Michael Hylton and attorney-at-law Daynia Allen represented the appellant; while Althea Jarrett, KC, and attorney-at-law Jevaughnia Clarke represented the board of management at Kensington Primary, the Ministry of Education and the attorney general.

tanesha.mundle@gleanerjm.com