SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010), before Mr Justice Collins

A London school’s ban of the cornrows hairstyle resulted in “unlawful, indirect racial discrimination”, the High Court has ruled.

Mr Justice Collins specified that the ban by St Gregory’s Catholic Science College in Harrow was not unlawful in itself, but should have taken into account individual pupils’ family traditions. This claim was originally lodged on 16 December 2009, and concerns the lawfulness of the uniform policy applied by the defendants which, because the claimant was unwilling to comply with one aspect of it, meant he was unable to take up his place at the school. At that time, SH was aged 11 and was due to commence his secondary education at the defendants’ school. He is of African-Caribbean ethnicity. In his family, as his mother states, all men wear their hair in cornrows.

The background is clearly stated in an initial paragraph of the judgment,

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[SG] has since birth not cut his hair and it is kept in cornrows. This is in accordance with his family tradition. Cornrows (sometimes called braids) are prohibited by the uniform policy of the school and so he was not permitted to attend school so long as he kept his cornrow style. In his claim, he contended that the prohibition on cornrows it was unlawful because discriminatory on sex and on race grounds. Further, he asserted that there had been a failure to give any advance notice of the ban on cornrows (since, it was said, the written uniform policy did not make it apparent that the ban existed). As a result of his mother’s complaints, the ban on cornrows has now been made explicit. It was said that there should have been consultation before this change was made and there was accordingly a breach of his legitimate expectation that the policy which did not explicitly ban cornrows would be applied. There were further complaints that there had been a failure to follow guidance issued by the what was then the Department of Children Families and Schools (DCFS), now the Department of Education, and a failure by the defendants to discharge their equality duty (imposed by s.71 of the Race Relations Act 1976 and s.76A of the Sex Discrimination Act 1975 respectively and now contained in s.149 of the Equality Act 2010 which came into force on 5 April 2011).

SG is now at a different school. The defendants assisted him in obtaining a place and he is happy there.  Kenneth Parker J granted permission for the claim to be pursued on 15 June 2010. This present claim was entertained, even though SG did not seek any concrete relief. SG did not wish to be able to attend the defendants’ school. The defendants for their part recognised that religious or medical reasons may justify an exception. Thus Rastafarians or Sikhs who do not cut their hair would  be permitted not to conform.

The question Mr Justice Collins to decide is whether, on what is now said by the claimant, his mother and witnesses who have made statements on his behalf, he should have been allowed not to conform since to refuse to allow him to do so amounted to unlawful discrimination.

The relevant law was discussed, especially the Sex Discrimination Act [1975] and the Equality Act [2010]. The uniform policy in force in the school in September 2009 was discussed.  The policy did not specifically refer to cornrows. However, at the reception meeting for new pupils the cornrow ban was stated. Unfortunately, the claimant and his mother were late arrivals and did not hear the announcement nor had they been told earlier any more than the policy. Thus the first they knew of the ban was the refusal to allow the claimant to attend unless the cornrows were removed. Furthermore, this case was not a ‘general attack’ on the school, as the Judge noted:

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The school has published policies on Equality and Diversity and on Race Equality. It is in the London Borough of Brent and in one of the most ethnically diverse communities in the United Kingdom. The vast majority of its pupils are not white and those of African-Caribbean or African ethnicity constitute over 30% of the total of 1027 pupils. There are particular concerns in the area about gang culture (which is predominately a male problem). This must be kept out of the school and the uniform policy is believed to assist in this aim. The school has received outstanding grades in the 2009 Ofsted report in respect of pupil safety and behaviour, pupils’ spiritual, moral, social and cultural development and the effectiveness with which it promotes equality of opportunity and tackles discrimination.

Mr Justice Collins in his judgment clear that there is and can be no suggestion that the school is in any way knowingly guilty of any racial or other discrimination. He suggested that the contrary was in fact the case., and that the school has an excellent record. Mr Wolfe has not sought to suggest the contrary. Thus any unlawful discrimination which may be found to exist results from a failure to appreciate fully what the law requires and honest errors. Mr Justice Collins then ‘dotted the ‘i’s and crossed the ‘t’s’ in considering whether there had been any “particular advantage”, as the law required him to do so.

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The words used by Parliament are ‘a particular disadvantage’. The adjective ‘particular’ is obviously intended to indicate that what is recognised is more than a disadvantage – that would apply if a person was unable to act in a way in which he or she wished to act because, for example, it was considered to be a desirable way of manifesting his or her beliefs. It is clear that more than choice is needed to constitute a particular disadvantage. But 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.

But is such discrimination justified?

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.. The purpose of the duty is to require public bodies to whom it applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them: see per Arden LJ in R(Elias) v Secretary of State for Defence [2006] 1 WLR 3213 at paragraph 274. She observed:-

“This is a salutary requirement and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.”

But what about the effect of allowing cornrows would have on wider policy?

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The concern is that to permit an exception for one hairstyle would mean that it would not be possible to justify a zero tolerance approach to others. There would be likely to be applications from others for example to allow ‘skin head’ cuts as they are common in some eastern European cultures. It is said that to allow such as the claimant to wear cornrows would mean that the policy which was producing the desired results would be undermined and so the school would be expected to run the risk of trouble.

So in para. 48 Mr Justice Collins concluded,

I am afraid I do not find these objections valid. 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 school said it was “naturally disappointed” and may try to appeal. It said, “St Gregory’s is proud of its rich cultural and ethnic diversity and is run on the belief that everyone at the school is equal and made in the image of God.” Rob Berkley, meanwhile, Director of the race equality think-tank the Runnymede Trust: “This isn’t an outrageous hairstyle”.  Mr Justice Collins dismissed the claim there had been sex discrimination.