Case Summary and Outcome

The High Court of the Eastern Caribbean Supreme Court in Saint Lucia held that a school rule which governed the length of students’ hair did not violate the constitutional rights to freedom of expression and conscience. A student’s mother applied to court on his behalf after he was informed that his hair was longer than the stipulated length and was instructed to not return to school until he had cut it. The Court held that as the student did not provide any evidence for what the hairstyle was meant to convey it did not constitute a form of expression, and as it was not associated with a belief that was serious and coherent, it could not be protected under freedom of conscience. The Court added that even if it had found that the school rule infringed the right to freedom of expression and conscience, it was not arbitrary and had a legitimate purpose and so would not have constituted an unjustifiable limitation of the rights.

---

Facts

On September 5, 2022, Alexander Elliott, a minor and a third form student at the all-boys secondary school St. Mary’s College, in Saint Lucia, was removed from class for failing to adhere to the Code of Conduct rules on hair length.

When he was admitted to the school Elliott and his parents were issued a Code of Conduct by the school, which he and his parents signed. In this Code of Conduct, it noted under Rule 1.19 under the Section “Personal Hygiene and Grooming” that “a student must observe all the basic rules of personal hygiene and cleanliness and one’s hair must be properly groomed at all times (and) at no point should students’ hair be more than one centimeter long or high. St. Mary’s College students are not allowed to attend school with their hair in plaits, braids, and other similar hairstyles and fancy haircuts and neither should students alter the natural colour or texture of their hair. The decision of the principal in this matter is final. Further, students must not embellish or physically alter the appearance of their hair using chemical agents or their skin with tattoos.” [para. 31]

The Code of Conduct explained that the purpose of this rule is to ensure that everyone is not uncomfortable and that the “appearance conveys to others something of one’s character and reflects on the standards and image of the college.” [para. 31] School officials said that they had changed the rule after complaints that the notion of “properly groomed” was subjective and provided school officials with too much leeway or discretion in deciding, and that the objective standard of “no more than one centimeter long or high” was used to guarantee objectivity and clarity. [para. 73]

The Code of Conduct also stipulates that the school reserves the right to discipline a student in the event of breach of the rules. These punishments included detentions,  written warnings, sending the student home, bans from games and parental conferences.

Elliott was instructed by school officials to call his parents to have his hair cut and to not return to school until he made the necessary changes to comply with the Code. The principal at the time, Don Howell, made several attempts to ensure compliance with the rule by engaging his parents to cut or cover his hair, which were all rejected by his parents. Elliot and his parents did not give the school a reason for their non-compliance with the rule.

On September 9, 2022, Elliot’s mother as his “next friend” – a person who represents another who is not competent to represent themselves – filed an application challenging the rule, and sought and obtained an Interim Injunction before the Eastern Caribbean Supreme Court, ordering the Board of Management of the Saint Mary’s College to allow Elliott to attend school and classes until the determination of the substantive hearing of the case.

Elliott sought an order that the rule breached his right to freedom of expression under section 10 and right to freedom of conscience under section 9 of the Constitution of Saint Lucia, as well as his right to human dignity. He also sought an order that the rule was unjust as it was “arbitrary in nature and oppressive” and that any educational institution which unjustifiably mandates the covering of one’s natural hair is oppressive of and offensive to fundamental human rights, freedoms and dignities and is unjust. [para. 7]

Section 10 of the Constitution states that “freedom of expression includes freedom to hold opinions without interference, to receive ideas and information without interference, irrespective of whether the communication is to the public generally or to any person or class of persons,” but that “nothing contained in or done under the authority of any law shall be held to be inconsistent with the freedom of expression if it is done in the interests of defense, public safety, public order, public morality or public health or if it is reasonably justifiable in a democratic society.”

Section 9 of the Constitution establishes the enjoyment of one’s freedom of conscience, including freedom of thought and of religion, freedom to change his or her religion or belief and freedom, either alone or in a community with others among other freedoms. Similar to section 10, and other fundamental rights and freedoms, the right is not absolute, and can be constrained in the interests of defence, public safety, public order, public morality, public health and also if it is reasonably justifiable in a democratic society.

Elliot also sought an order that the rule was not in conformity with the provisions of the UN Convention of the Rights of the Child (UNCRC) which created domestic obligations which allowed him to sue for a breach of its provisions, and order the Attorney General of Saint Lucia to regularize rules regarding hair at all educational institutions for compliance with the fundamental human rights and freedoms established in the Constitution of Saint Lucia. [paras.7-8]

The Board of Management of St. Mary’s College and the Attorney General of Saint Lucia were cited as defendants.

---

Decision Overview

Justice Cenac-Phulgence of the High Court of the Eastern Caribbean Supreme Court delivered the sole opinion for the court. The central issues to be examined in this case were whether the school rule infringed Elliot’s constitutional freedoms of conscience and expression, and if so, whether that infringement was reasonably justifiable in a democratic society.

Elliott argued that the rule contravened his freedom of expression as by “not cutting his hair, [he] may be communicating any number of things”. [para. 58] He referred to the Caribbean Court of Justice case of Quincy McEwan v Attorney General of Guyana [2018] CCJ 30 (AJ) which held “that a person’s choice of attire is inextricably bound with their identity and sense of self and how they dress and present themselves is integral to their right of freedom of expression” and Maurice Tomlinson v. Television Jamaica and others [2012] JMSC Civ which also provided “that the difference between expression and speech is that expression includes a wider range of expression which conveys meaning from the mind of the communicator to the person intended to be communicated with.” [paras. 53-54]

Elliot also argued that the rule contravened his right to freedom of conscience. He submitted that the Board of Management – by forcing him to cut his hair to comply with the one centimetre rule – infringed his thoughts and replaced it with the thoughts of the Board. Elliot argued that the right could not be limited to Professor Lloyd Barnett’s exposition in The Constitutional Law of Jamaica which noted that “the enjoyment of the right to freedom of conscience involves the right to carry out the external practices of one’s creed, to endeavour to persuade others to adopt one’s belief as well as the right to organise and manage its activities and ceremonies”, but should be expanded to include the freedom of one’s thoughts and consciousness. [para. 37] Elliot maintained that there was no requirement to make known his conscience and the underpinning rationale or motivations for it, as he may hold on to a conscience even if only because it pleases him or her to do so, and that it can change if it also pleases him or her to do so.

St Mary’s College and the Attorney General argued that the only way Elliot’s hair style could be subsumed under freedom of expression is if the wearing of the hair is meant to communicate a particular message or worn with intent. They referred to the case of Virgo v. Board of Management of Kensington Primary School, which noted that hairstyles worn with intent may be considered expression, and that the right to freedom of expression encompasses any form of expression that is used to communicate a particular idea. [para. 56] This meant that if a person wears their hair to depict or communicate a particular message that constitutes expression and examples would be locks under Rastafarianism, or the Afro. St Mary’s also referred to the European Court of Human Rights case of Mahmut TIG v. Turkey which noted that the right to freedom of expression includes the right for a person to express his ideas by the way he wears his beard, but that the claimant in that case had not argued his beard was inspired by particular ideas and or convictions and so the refusal of entry to a university campus on the grounds that he had a beard was not an interference with freedom of expression as contemplated under the convention.

The Court held that unlike in Virgo, there was no evidence whatsoever that Elliot’s hairstyle was intended to convey a particular meaning. It stated that if Elliot sought a breach of section 10, he must have proven that he was expressing a particular idea, or belief with the wearing of the hairstyle in breach of the rule and that its prohibition by the school suppressed that belief or idea. The Court held that Elliot’s hairstyle was worn without intent to convey a meaning and that the affidavit of his mother also did not prove any intent.

The Court noted that the only possible evidence was from “written and oral submissions of Counsel and that it was limited to the belief that the constitutional rights to freedom of conscience and freedom of expression was breached by the school rule that mandated his hair to be cut to an arbitrary height.” [para. 62] It held that, without more, this was not sufficient to show a breach of section 10. It added that Section 10 was not meant to protect the wearing of a hairstyle, particularly if it is worn without the intent to convey a particular message or opinion or idea, and that Elliot had given no reason to the school for why he wanted to wear that hairstyle.

The Court stated that even if it was incorrect and that the rule was inconsistent with section 10, Elliot would still not have automatically satisfied the litmus test of the limitations placed on the freedom of expression because the right is not absolute. It explained that if Elliot “discharged his obligation to show a prima facie breach of the right, the measure may still be reasonably justifiable in a free and democratic society.” [para. 69] The Court applied the test as established in De Freitas v. The Permanent Secretary of the Ministry Agriculture and Fisheries which held that to determine whether any such limitation is reasonable and justifiable a Court must ask whether the legislative objective is sufficiently important to justify limiting a fundamental right; the measures designed to meet the legislative objective are rationally connected to it; and the means used to impair the right or freedom are no more than necessary to accomplish the objective. It also referred to the Canadian case of R v. Oakes which noted that the measure must be proportional, and a fair balance must be struck between the rights of the individual and the interests of the community.

The Court held that the rule had a “sufficiently important objective in that it was implemented to ensure the uniform enforcement of the school’s grooming policy and to ensure order and discipline is maintained at the school” and that it was “rationally connected to that objective … and has long achieved the goal of maintaining order and discipline at the St. Mary’s College which has undoubtedly contributed to its status as the number one boys’ school in Saint Lucia”. It added that “the measure is applied equally to all students of all ethnicities and allowances are made for students who have special reasons for not cutting their hair to communicate to the school that reason and for them to be given leave to wear their hair as is.” [para. 83]

The Court accepted St Mary’s argument that “that the rule promotes effective teaching, learning time in school and supports the distribution of the educational instruction, prevents disorder and distractions that can have a detrimental impact on the core function of the St. Mary’s College as an institution.” [para. 84] The Court found that the rule is not arbitrary as the principal “provided an alternative for the parent and minor to consider, wherein, in the absence of cutting his hair, he could cover it while at school” and described Elliot’s parent’s response to the school that he “did not train his child to wear hats inside” as “untenable”. [para. 86]

Accordingly, the Court found that the school’s rules did not infringe the right to freedom of expression.

The Court also examined whether the rule infringed Elliot’s freedom of conscience under Section 9 of the Constitution.

The Court referred to the cases of Re Eric Darien (a Juror) and Virgo which noted that “the freedom also covers thought, religion or a sincerely held belief and it must be communicated, as if one’s conscience is not known, one cannot claim a right arising from it.” [paras. 34-35] The case of Bain v. UWI established that the right includes the ability to think and do as one chooses. The Court also referred to the Council on European Rights Handbook which stressed that the belief cannot be an opinion, and must be a belief which is serious, coherent and important.

The Court held that while Elliot may have held the opinion that his hair was not to be cut or covered, it was not serious enough or important when juxtaposed with the interest of the school to ensure orderly and efficient discipline and management. The Court noted that it could not assume what the opinion or belief was without Elliot expressing it. And held that in order to show a prima facie breach of Section 9, Elliot must have established facts which could substantiate the exercising of the right which were absent. The Court stated that “it is therefore not hyperbolic to state that a belief is to be proudly held and clearly communicated. It is not a sword that it is to be kept sheathed and only to be revealed when there is an action which the party does not like.” [para. 50] Accordingly, the Court found that the rationale did not meet the threshold and therefore there was no breach of the freedom of conscience, and noted that Elliot’s, “failure to communicate the reasons for his non-compliance stripped him of any claim to a breach of freedom of conscience as it would be an affront to logic for the board to be held liable for a breach it had no idea it was perpetrating.” [para. 51]

The Court also dismissed the claim that the implementation and enforcement of the rule breached human dignity which is not a recognisable right under the Constitution, but mentioned solely within the preamble of the Constitution. While the Preamble is justiciable in accordance with the Caribbean Court of Justice case of Nervais v. R; Severin v. R, “there can be no separate breach of human dignity as it existed under the Constitution since the preamble is not an independent provision conferring any freestanding rights.” [para. 95]

The Court also dismissed the question of the rule contravening the UN Convention of the Rights of the Child and whether the Convention created domestic obligations to allow claimants to sue for a breach of its provisions. It found that Elliot “did not argue in his pleadings that anything regarding rule 1.19 of the Code was in violation of the provisions of the UNCRC, but for references to articles 28 and 29 in the heading of the claim.” [para. 99] Elliot had also conceded St Mary’s argument that the Convention had been ratified but not incorporated by Saint Lucia, and therefore did not create any local obligationss for the Board and by extension the state, irrespective of the CCJ decision of Joseph v. Boyce.

Accordingly, the Court did not award any relief because there was no breach of Elliot’s rights to freedom of expression and conscience. The Court noted, “that whether the rule in question is in need of review or may be considered outdated or unreasonable by some are separate issues and should not be conflated with whether the rule infringes particular rights under the Constitution and the claimant’s case was confined to the latter.” [para. 107]

---