Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Contracts Expression
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The Supreme Court of Judicature of Jamaica held that a school policy prohibiting dreadlocks as a hairstyle does not violate constitutional rights, including to self-expression, of the child. Parents of a minor child were informed by the school that unless they cut the child’s locked hair her admission to the school would be revoked because the school had a policy of “no braids, no beads, no locking of hair”. The Court held that, because the parents had not informed the school that the child’s hair was a manifestation of their Rastafarian beliefs and the school had not told the parents that there was an exception to the policy on the grounds of religion, this case was not about the right of Rastafarian children to wear dreadlocks to school. The Court stated that an individual cannot vary the rules of an institution simply because it does “not fit in with their choices and mode of self-expression” [para. 155], and held that the school’s policy was not an infringement of the child’s right to freedom of expression.
In April 2018, the parents of ZV, a minor child, applied for a place for ZV in Kensington Primary School, St Catherine, Jamaica. The school accepted ZV’s application and she was due to start at the beginning of the school term in September 2018. ZV and her parents wear their hair in a “locked” style and identify as Rastafarians. Before the school term commenced, ZV attended an orientation event and ZV’s mother was told that ZV’s hairstyle was contrary to the school policy of “no braids, no beads, no locking of hair” [para. 3]. Accordingly, she was asked to either remove ZV’s locks or cut her hair or the offer for admission would be withdrawn. When her mother made an enquiry if this hair policy is stated in the school’s rulebook, she was informed that it was an “unwritten policy based on the experience of the personnel at the school” [para. 3]. The school told ZV’s mother that the reason for this policy was that dreadlocked hair is not washed regularly which leads to lice infections and was therefore a health hazard. ZV’s parents did not state that ZV wears her hair in locks because of their religious beliefs, and the school did not inform them that there was an exception to the policy for children who wear locked styles for religious reasons.
On July 18, 2018, ZV’s mother filed an application before the Supreme Court of Judicature in Jamaica on her behalf, arguing that ZV’s constitutional rights had been infringed “by the imposition of the [school’s] unwritten policy of ‘no braids, no beads, no locking of hair’” [para. 7]. On August 3, 2018, the Court granted an interim order, interdicting the school from denying ZV admission to the school pending the determination of the constitutional claim.
ZV submitted that the imposition of the hair policy infringed her rights to freedom of expression, under section 13(3)(c); equality under section 13(3)(g); equitable and humane treatment under section 13(3)(k); respect for and protection of family life and privacy of the home under section 13(3)(j); and due process under section 16 of the Charter of Fundamental Rights and Freedoms (“the Charter”); and her rights as a child under section 13(3)(k) of the Charter and under section 28 of the Child Care and Protection Act. ZV also sought declarations that a policy which excludes school-going individuals who wear dreadlocks from attending schools breaches the “collective rights of the family”, namely the rights to freedom of expression; equality before the law; freedom from discrimination on the grounds of race, place of origin, social class, colour, religion or political opinions (under section 13(3)(i) of the Charter); equitable and humane treatment; respect for and protection of family life and the privacy of the home; to due process; and to freedom of religion (under section 13(3)(s) of the Charter).
The Board of Management of the school, the Minister of Education and the Attorney General of Jamaica were cited as defendants in the case. Since the constitutional and statutory rights of children were involved, it fell within the purview of the Office of the Children’s Advocate under section (14)(1) of the Child Care and Protection Act, and the Office of the Children’s Advocate therefore acted as an intervener in the case. The Children’s Advocate supported ZV’s position that the school’s unwritten hair policy was unconstitutional.
Judge Sonia Bertram Linton delivered the opinion for the three-judge bench of the Court. The central issues for the Court’s determination were whether the school’s policy violated ZV’s constitutional rights, and whether the personal expression of the child could override the school’s policy [para 86].
ZV argued that the policy infringed the right to freedom of expression because that right “encompasses one’s hair style,” and infringed her right to express herself, and that because there was no justification for the rule it was unjustified and unconstitutional [para. 30]. ZV referred to the U.S. case of Tinker v. Des Moines Independent Community School District 393 US 503 (1968) and a case from Guyana McEwan et al v Attorney General of Guyana,  CCJ 30. ZV specifically argued that “it is immediately identifiable that a person is Rastafarian by their grooming practices” and noted that the McEwan case had held that “[a] person’s choice of attire is inextricably bound up with the expression of his or gender identity, autonomy and individual liberty” [para. 33]. With reference to the Canadian cases of R v. Big M Drug Mart  1 SCR 295 and Morgentaler v. R  1 SCR 30 and the Zimbabwean cases of In Re Chikweche 1995 (4) SA 284 (ZC) and Dzvova v. Minister of Education  ZWSC, ZV argued that her right to freedom of conscience and religion was violated by the policy. ZV submitted that the right protects “genuinely held religious beliefs and those beliefs which are sincere and based on personal morality”, and that these beliefs are protected whether they are religious or secular [para. 42]. ZV stated that keeping dreadlocks is not misconduct, and so the powers given to the Minister of Education to create policy on school discipline and to the school to implement disciplinary processes cannot include the power to regulate a manifestation of a religious belief.
ZV also argued that the policy was discriminatory, and therefore violated the right to equality, and infringed the right to access to education and was “inconsistent with the concept of inclusive education” [para. 36]. She also submitted that the policy infringed the right to equitable and humane treatment because it allows all other hair styles except for braids, beads and locking.
ZV maintained that there were “less restrictive measures to correct the mischief that the rule was trying to address” and that there was no evidence that her hair “had not met the hygiene standard” – the object of the rule [para. 46].
The school argued that there was no breach of any constitutional rights, and, in the alternative, that if there were any breaches those breaches were “demonstrably justified in a free and democratic society” [para. 47]. In respect of the alleged breach of freedom of expression, the school submitted that “a person can be wearing a particular hairstyle without the intent to convey any particular thought or idea” and so simply prohibiting a hairstyle is “not sufficient to prove that the right to freedom of expression has been breached [para. 48]. The school argued, with reference to the ECtHR case Mahmut TIG v Turkey, (No 8165/03) (24 May 2005), that ZV must have shown “that she intended to express a particular belief or idea with the wearing of the hairstyle” [para. 49]. The school added that there was no evidence that ZV herself “made a conscious decision to subscribe to the [Rastafarian] views and beliefs of her parents or that her hairstyle is a manifestation of that belief [para. 50].
The school also submitted that there was no infringement of the right to equality before the law because the instrument that was being challenged was a policy and not a law. It also argued that the right to equitable and humane treatment had not been violated as ZV had “failed to adduce sufficient evidence to show that she was treated differently from any other child in similar circumstances” [para 57]. The school submitted that as the policy “does not prevent individuals of school-going age from attending primary or secondary school on the basis of wearing their hair in locks” there could not be an infringement of the right to due process [para. 62]. The school submitted that because the policy would not cause physical harm to ZV and because it would not be applied without her parents’ permission it could not infringe her rights as a child. It added that the policy did not deny ZV access to public education and that there may be valid reasons to justifiably exclude access to a specific educational institution. The school maintained that ZV had “failed to identify a policy, in existence, formulated by the Minister of Education that prohibits the wearing of locks in school” [para. 58]: it argued that there was no “policy that applies generally to individuals attending all primary schools” and submitted that there was evidence that the school “allows students to attend with locked hair if the hairstyle is worn as a result of religious beliefs” [para. 63]. The school argued that any breach of the right to respect for and protection of private and family life and privacy of the home would be justified by the purpose of the policy to “maintain an acceptable level of hygiene in the school and to maintain discipline and order to ensure effective teaching and learning time in the school” [para. 59]. It added that this approach had been identified by the school as the “best method” to addresses the issue of bad hygiene and disorder [para. 60].
The Children’s Advocate submitted that “the practice of prohibiting dreadlocks in a public educational institution … is in contravention of the constitutional right of children as well as their statutory rights under the Child Care and Protection Act” [para. 71]. It argued, with reference to the McEwan case and the Jamaican case of Tomlinson v. Television Jamaica (2013) JMFC FULL, that the right to freedom of expression “has a broad scope and can include the attire of an individual as a way of expressing their identity and personal beliefs” [para. 72]. The Children’s Advocate acknowledged that the school must strike a balance between creating policies to “maintain discipline and decorum” and protecting the rights and freedoms of its students [para. 76], and made reference to Sehdev v. Bayview Glen Junior Schools Ltd  JMFC Full 5. The Children’s Advocate submitted that although ZV and her parents did not explicitly claim that ZV “wears dreadlocks as an expression of her religious convictions” it was evident that they “identify themselves with this hairstyle from a religious context” [para. 78]. Here, the Children’s Advocate referred to the U.K. case, G v. Head Teach and Governors of St Gregory’s Catholic Science College  EWHC 1452 (Admin). The Children’s Advocate characterized the policy as one which “classified a group of people to be unhygienic and dirty” rather than one which “promoted healthy clean hair” [para. 81]. It stressed that “in the socio-political environment that exists in Jamaica, the school ought to be alive to the idea of ‘dreadlocks’ and its religious, spiritual and cultural significance” [para. 82]. The Children’s Advocate stressed that if the school did make an exception for dreadlocks for religious purposes this should have been communicated to ZV’s family. However, it also noted that such an exception would appear to be at odds with the stated purpose of the policy as being to promote hygiene.
The Court stressed that the case is not one “of Rastafarians being prevented from having their child attend a public institution because of dreadlocks worn out of religious observance”, and noted that it had been settled in Jamaican law that such a refusal would be unconstitutional [para. 88]. The Court recognized that ZV’s parents had never communicated their religious beliefs to the school and that “the tenure of the case argued by [ZV’s] attorney was not one which was defending the abridging of religious freedom” [para. 88]. The Court characterized ZV’s argument as being that ZV “should be allowed to attend school in the way that her hair was adorned because it represented the family’s decision as to their expression and freedom” [para. 88]. It said that the case “is about a desire to have acceptance and accommodation of what is said to be a right to individual expression of a conscientiously held belief, based on a decision taken by an individual and their family, about their chosen mode of self-expression” [para. 91]. It noted that the question facing the Court “has innumerable implications for the length and breadth of self-expression that should be allowed in our schools” [para. 88]. With reference to the St Gregory’s Catholic Science College case, the Court described the question facing it as being “how far should the school and/or the Courts go in endorsing this extent of freedom of expression by individual students in light of the rules and regulations for uniform and adornment laid down for public schools” [para. 91].
In examining the nature of the right to freedom of expression, the Court referred to the Tomlinson case and stressed that the right is not restricted to speech and “encompasses any form of expression that is used to communicate a particular idea” [para. 133]. The Court held that this includes “hairstyles worn with intent” but noted that not all hairstyles are “worn with intent” [para. 133]. The Court accepted that ZV’s parents had taken a Nazarite Vow – which prohibits hair cutting – and were raising their children within that belief system. Here the Court accepted that the Tinker and McEwan cases and the New York City Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair guidelines were applicable to the present case, and also made reference to the ECtHR case of Kara v. United Kingdom (App. No. 36528/97). The Court held that as ZV’s family had not declared any religious adherence to the school there was no infringement of the right to “freedom of expression connected with a religious belief” [para. 139].
The Court referred to the Big M Drug Mart and Chikweche cases and their position that freedom of conscience and religion should extend to “conscientiously-held beliefs, whether grounded in religion or secular morality” [para. 144]. However, the Court stressed that ZV’s right to religion had not been infringed because she had not demonstrated that the school had “encourage[ed] or forc[ed] the child or her parents away from their stated beliefs”, and reiterated that the family’s religious beliefs had not been disclosed to the school [para. 146]. The Court rejected ZV’s argument that there was no need for disclosure because all individuals with dreadlocks should be assumed to be Rastafarian.
Having established that the case was not one involving the manifestation of ZV’s religious beliefs, the Court examined whether the hair policy infringed her “right to self-expression” [para. 152]. It noted that there is a right to freedom of expression, but commented that “schools cannot be left to guess what it is, if it falls outside of set rules, guidelines and norms that are in a particular organisation” [para. 153]. The Court held that it “cannot be right or just for each individual to vary the rules of engagement … simply on the basis that it does not fit in with their choices and mode of self-expression” [para. 155]. Warning of the potential “flood gates” of self-expression, the Court stated that exempting individuals from rules on the basis of self-expression based on their own “proclivities” could impact on the “core function of the educational institution” [para. 156]. It added that allowing this self-expression exemption could “potentially mean that a student or their parent could wake up tomorrow and identify as whoever or whatever animate or inanimate object or personality they wish or identify themselves with any belief” and express themselves that way at school [para. 157]. Accordingly, the Court held that there was no infringement of the right to self-expression.
With respect to the right to equality before the law, the Court held that the policy cannot be considered a law and therefore the right had not been engaged. The Court also held that ZV’s rights as a child to protection had not been infringed as there had been no justiciable physical or mental harm and removing ZV’s locks of hair could only have been carried out “with the knowledge and consent of her parents” [para. 109]. In examining the possible infringement of ZV’s right to education, the Court held that as the right is not a “general right to attend a particular institution of choice” [para 120] and that the hair policy’s hygiene purpose was a legitimate aim, ZV’s right to education had not been infringed “as she could always attend another school that supports her form of expression” [para 123]. The Court found that ZV had not established that she had “been treated differently from some other similarly circumstanced person [that is, a child with locked hair like ZV]”, and so held that the right to equitable and human treatment had not been infringed [para. 125]. The Court noted that ZV’s family had not disclosed to the school the reason for her locked hair, and accordingly held that the right to respect for private and family life had not been infringed.
Accordingly, the Court held that the school’s policy was “designed to meet the objective as identified [a “controlled and hygienic environment’] and based on the past experiences in this regard at the school” and did not prevent ZV from enjoying religious freedom [para. 160]. The Court held that no rights had been infringed and ZV was not entitled to the declarations sought.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that a school’s policy on hairstyles can override a student’s self-expression the Jamaican Supreme Court of Judicature contracted expression. However, the Court did emphasize that hairstyles worn for expressed religious reasons cannot be prohibited by a school.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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