Hope­field Prep – are rules just rules?

Jamaica Gleaner - - IN FOCUS - Bert Sa­muels Guest Colum­nist Bert Sa­muels is an at­tor­neyat-law. Ayanna T. Sa­muels is an aero­space en­gi­neer, and gen­der and ICT spe­cial­ist. Email feed­back to col­umns@glean­erjm.com an­dasamuels@alum.mit.edu.

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 In this 2010 pho­to­graph, win­ning Hope­field Prep team mem­bers (from left) Elias Issa, Rachel Miller, and Justin Lowe hold aloft a tro­phy. A firestorm has erupted at the school since ad­min­is­tra­tors dereg­is­tered a boy for hav­ing hair in con­tra­ven­tion of the school’s rules. Be­hind them was the team’s co­or­di­na­tor, Dr Luk­kee Simp­son.

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.

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.

I

DIS­CRIM­I­NA­TORY GROUNDS

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