Hey, teacher! Leave those cornrows alone

A London schoolboy this week won his High Court challenge against a school policy banning him from wearing his hair in 'cornrows', or braids. Adam Wagner analyses the judgment.

Most people have their first taste of injustice at school. This is hardly surprising: an institution containing hundreds of teenagers for whom rebellion is a biological imperative is always going to be difficult to control. In trying to do so, teachers sometimes impose petty rules.

Many children fantasize of an external authority intervening to expose the injustice of those rules, particularly in relation to modes of dress. But few take their school to court to challenge a policy on hairstyle. And even fewer win, as a young boy – known in the case of SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010) as SG – has just done in the High Court. SG took his school, St Gregory’s Catholic Science College of Harrow in Greater London, to court to challenge its ban on boys wearing their hair in “cornrows“, or braids.

SG is of African-Carribean ethnicity and has since birth not cut his hair. It is kept in cornrows in accordance with his family tradition. In 2009, at age 11, he joined St Gregory’s, by all accounts an excellent school, for his secondary education.

At the time, the school’s policy did not explicitly ban cornrows (although, in a bit of unnecessarily complicated school policy language we can all recognise, it did allow extensions if for “Trichological reasons… see Head of Year”). But SG had missed his reception induction in which it was made clear the hairstyle was banned. A ban on “braids” was later added to the written policy, along with a more general prohibition on “peculiar and bizarre styles” which “are quite unacceptable“.

The ban was not just about holding back the children’s self-expression. The school claimed – with the sympathy of the court – that there were particular concerns in the area about gang culture, predominantly amongst young men. Some hairstyles “encourage that mentality“. The aim is to make the school a place where children “are first and foremost safe and valued equally” and where they are taught to “see the school as a community in which are all (sic) equal and made in the image of God“.

SG challenged the policy under race and sex discrimination law. In particular, under duties contained under section (“s.”) 71 of the Race Relations Act 1976 and s.76A of the Sex Discrimination Act 1975. By the time it reached the High Court, this was to be one of the first high-profile cases to be considered under the new duty contained in s.149 of the Equality Act 2010, which came into force on 5 April 2011 (the public sector equality duty). It should be noted that the judge saw no significant difference between the duties under the new law and those under the old.

The allegation made against the school was that it “indirectly” discriminated against SG on the grounds of his race and sex. Indirect discrimination is when an authority has a “provision, criterion of practice” which applies equally to people not of the same sex or race, but which puts one group at a particular disadvantage. To prove indirect discrimination, it is also necessary to show that the policy cannot be shown to be a proportionate means of achieving a legitimate aim.

Mr Justice Collins began by examining the history of cornrows in relation to race. SG relied on the evidence of Dr Richard Majors, a professor with a particular expertise in African, African-Caribbean and African American culture. He gave evidence that cornrows were worn for appearance and grooming purposes by slaves. Moreover, "Many slaves after capture who had their heads shaved for hygiene reasons – when free – grew their hair into braids or dreadlocks… in defiance of the slave master."

Cornrows have “intergenerational values” too, with hair-braiding being an “ancient art-form handed down from generation to generation“. This was the case in SG’s family too, where all men wear their hair in cornrows. SG said: "I just don’t see a problem with it. I have had my hair all my life. I really like my hair my brother and dad have cornrows and we all like it."

SG also mentioned his joy at seeing the footballer David Beckham sporting the style, which showed “he appreciated African hair styling, and that we are all the same underneath it all“.

Mr Justice Collins rejected the school’s submission that it was necessary to show a practice had “exceptional importance” to the person alleging disadvantage. That test was set out in the case of  R (Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin), a case in which a sikh girl was found to have been discriminated against for not being allowed to wear a plain steel bangle, a sign of her religion, at school. Rather, Mr Justice Collins decided that the right question is as set out in the relevant law namely whether there has been a “particular disadvantage”. He expressly rejected the Watkins-Singh test: "I think, with the greatest respect to Silber, J, it may be that the need to show exceptional importance puts the threshold too high. Certainly there is a need to show particular importance: that is the word used, and it conveys a need for a high standard." This aspect of the judgment may be the most controversial.

In this case there had been a particular disadvantage. And SG’s family and social customs could straightforwardly be “part of ethnicity” within the meaning of the Equality Act. Since the school’s policy restrcted his family and social customs, even if not deliberately, SG was at a disadvantage.

But was that disadvantage justified by a legitimate aim? Equality legislation imposes a requirement on public authorities to give advance consideration to issues of race discrimination before making any policy decision. In this case, no such consideration had been taken; not fatal to a defence but not helpful either. The school relied on the fact that there had been no complaints. But, the judge continued: "The problem of course is to know why all who conformed and did not complain acted as they did… It may be that those who complied were prepared to accept the disadvantage in order to get a place in an excellent academic establishment."

And, whilst the aim of the policy was “clearly legitimate”, it was not justified. The school argued that if it was forced to allow an exception for racial or family reasons, other hairstyles, such as the skinhead hairstyle, would have to be allowed too. The judge rejected this: "It is only if there is a genuine cultural and family practice of not cutting males’ hair and wearing cornrows that an exception could be made. It would be made clear that the grounds for such an exception would have to be established and that conformity must occur unless to conform was regarded as impossible. There is no reason why hairstyles which might be indicative of gang culture should be permitted. There is, for example, not a shred of evidence to suggest that anything but choice could lead to a skin head cut."

The policy was therefore indirectly discriminatory on grounds of race.

The sex discrimination claim failed; cornrows for African-Caribbean girls were recognised as acceptable because they were a satisfactory means of keeping long hair neat and under control. This was an acceptable rationale.

SG’s claim for damages will be dealt with at a later stage by a county court, who will have to consider whether and to what extent the school should reasonably have known the policy was discriminatory at the time of its application. SG has now left the school so the win will not at present affect him directly.

So SG lived out the fantasy of many schoolchildren in exposing the injustice of his teachers publicly and unequivocally. Some will say that this amounts to a heavy handed intervention by the High Court into a school policy which will lead to a number of copycat claims by children who feel that school simply isn’t fair. But it is surely right that children know that discrimination law does not stop at the school gate.

The case may well be appealed, particularly given the rejection of the “exceptional importance” test set out in the Sikh bangle case, which will in practice make it easier to bring claims of this type. In the meantime, schools will be franticly reexamining their hair and clothing policies for potential discrimination and students dreaming of their day winning against their teachers in court.

Adam Wagner is a barrister at 1 Crown Office Row. This article first appeared on the set’s UK Human Rights blog.