What Happened?
On the 31st of March, “hundreds of students”[1] staged a protest at Pimlico Academy in London over “allegations of racism amid changes to its uniform policy, the history curriculum and the placement of the Union Flag outside the building”[2]. The focus of this article will be on the uniform policy at Pimlico Academy in regard to its students wearing hijabs.
Students at London's Pimlico Academy staged a sit-in protest, refusing to go to their lessons, over a strict new uniform policy banning hairstyles that 'block the views of others' and hijabs that are 'too colourful'. Pupils have accused the school's management of racism, claiming the new policy would penalise those with afro hairstyles and Muslim students. Students have also criticised the school for allegedly failing to recognise Black Lives Matter or Black History Month.
What does this mean?
The original uniform policy stated that “headscarves must not be too brightly coloured” and that “they must completely cover the hair”. The students deemed this unacceptable and demanded that the policy be changed, which it was, and the current policy states only that “hijabs must be black or navy blue in colour”[3]. Subsequently, the conundrum here is whether it was discriminatory for a headmaster to say that he doesn’t want female students to wear hijabs that are of a bright colour that do not match the school uniform?
Regarding this issue, the protesting students state that “the uniform policy is extremely insensitive for female wearing a hijab.” Although the homogeneous view would be that in no way is it anyone’s right to tell a young girl or woman of how she should wear her headscarf and practice her religion”[4] the legal principle as interpreted in both the Equality Act 2010 and the Human Rights Act 1998 dictate the advice from which states that “schools should be sensitive to the needs of different cultures, races and religions”.[5] Thus, the educational institution should back the student’s demand on the freedom of wearing a scarf of any colour as it’s religious sentimental values far outweigh the importance of the uniform policy implemented by Pimlico. On the other hand, the students who made these demands do make a strong point that if a Muslim girl is wearing a hijab, it is up to her discretion of how she wears it and whether or not that means covering her hair completely or not.
The freedom to wear clothes and it’s colour that interlinks to a person of faith has always been a topic of intense scrutiny by liberals, conservatives and nationalists. As such, ‘Pimlico’ incident foreshadows a bigger picture illustrating the dark and primitive views of the majority of European nations who have used the powers within their local and national political authorities to outright ban the wearing of the hijab and the burqa, let alone decide the colour of religious clothing. This makes the original policy of Pimlico Academy pale in comparison to the hundreds of institutions varying from primary schools to businesses that have implemented such restrictions, and which are now the cultural and social norms in modern society.
For instances, in France, the secular government imposes that nobody wears any items of religious significance. This means the exclusion of Muslim females exercising the right to wear hijabs, Sikh males exercising their religious right to wear turban, Jewish Males wearing Kippah and a ban for a civilian to wear a cross. Similarly, in Germany, the state of Baden-Wurttemberg banned the wearing of burqa. Given that the French and German government made up of mature adults with their outlandish degrees and vast experiences in political dialogue have imposed these discriminatory rules against people of different religions and this is being followed by its residents, can a student who has just started discovering the dark reality of life outside those school fences make a sound complaint that shuns the academy’s uniform policy?
The government of the western German state of Baden-Württemberg agreed to ban full-face coverings, often known as burqa or niqab, in schools.
The rule comes as the topic of Muslim face coverings has been hotly debated in Germany and follows a ruling by a court in Hamburg that reversed that city's own ban.
Baden-Württemberg's city council's decision to ban full-face coverings, typically worn by ultra-conservative Muslim girls, matches the ban for teachers that is already in effect.
State Premier and prominent Green politician Winfried Kretschmann conceded that cases of full-face veiling in schools were rare, but said that nonetheless, a legal ruling was necessary for the rare cases.
Kretschmann said that full-face veiling did not belong in a free society. But he added that such a ban at the university level, where students are adults, was a more complex question. For now, the rule in Baden-Wurttemberg will only apply to primary and secondary education.
How does this impact the legal sector?
The academy’s guiding philosophy is “to reinforce [the] spirit of excellence [at the school], encouraging students to take pride in belonging to their school community”?[6] Surely, to achieve pride purports to valuing a student’s opinion of what matters to them the most and enforcing their rights to help them belong in their school community, but the reality is that only the board members of the school can answer this question for them.
According to s.10 of Human Rights Act 1998, there is a legal obligation that the school has to fulfil “for the protection of health or morals, for the protection of the reputation or rights of others”[7], This means that when a complaint is made to the school, they should examine the facts in light of the relevant law or policy which includes an examination of the human rights points raised. However, this excludes the rights of children to bring forth their opinion and have their recommendation legally enforced on the uniform policy.
This is because, there is an underpinning concept of adult oriented design which leads the law to not be child centred.[8] To begin with, there is a theoretical misalignment between the traditional understanding of the rights and the contemporary granting of rights to children.[9] This is because when a right is given to someone, there is an underlying presumption that the individual has the capacity for self-determination.[10] A child in this case, a student does not have the capacity to make its own decision. Therefore, when a child becomes a rights holder, the state or the school becomes the moral agent that empowers its right.[11] This creates a practical misalignment between the right holder and the moral agent. Thus, the definition and characteristics of childhood and the aim of protecting health or morals of student is artificial. This is because, the adults perceive what children rights should be and how they should represent themselves in the future. The state decides what is in the child’s best interests. For instances, what clothes they should wear, and they do this by measuring the capacity of a child to that of an adult. This is demonstrated in medical cases where the capacity of a child can be measured through the ‘Gillick competency test’.[12] The test involves the child refusing to take the treatment to have sufficient understanding and intelligence to give its consent.[13] The child will have sufficient understanding, if it can understand the nature of the treatment that it is refusing to take and the consequence that follows if the treatment is not taken.[14] However, the requirement of being competent is placed in a high threshold by the courts, particularly in England.
Therefore, even if a child is considered intelligent and has sufficient understanding of the treatment or in this case the student’s moral intelligence in understanding the reasons given by the school to not wear hijab or the way to wear it or the colour of it, whilst accepting that this is clear discrimination of their rights, the courts may still refuse to accept the student’s decision of enforcing their rights. The Gillick competency is ratio decidendi principle that is used as a measure for all arguments of whether children or in this case, the student of Piccolo can enforce their legal rights to push for a more flexible notion of wearing the hijab and so their autonomy is restricted from a human rights perspective.
In conclusion, the 64-million-dollar question that should be raised here is who was at fault in this situation. Students of the millennial or School system of the 20th Century?
Written by Gillis Robbie
Assessing firms:
#Dentons #Clifford Chance #Gowling WLG #Addison Aaron #Hogan Lovells International LLP #White & Case LLP #Baker McKenzie
References:
[1] https://www.theguardian.com/world/2021/mar/31/pimlico-academy-pupils-stage-protest-over-discriminatory-policies
[2] https://www.theguardian.com/world/2021/mar/31/pimlico-academy-pupils-stage-protest-over-discriminatory-policies
[3] https://www.pimlico.futureacademies.org/attachments/download.asp?file=81&type=pdf
[4] https://twitter.com/AyahAyah_/status/1377248768991580167
[5]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/315587/Equality_Act_Advice_Final.pdf
[6] https://www.pimlico.futureacademies.org/attachments/download.asp?file=81&type=pdf
[7] https://www.legislation.gov.uk/ukpga/1998/42/schedule/1
[8] See International Human Rights: Law and Practice (2nd edn Cambridge University Press 2016), 529
[9] Kaime T, 'The African Children's Charter: Does It Represent a Relevant Vision of Childhood and Children's Rights.' (2009) 29(3) Child Legal Rts J 11, 12
[10] Kristina Anne Bentley, ‘Can there be any universal children's rights?’ (2005) 9 International Journal of Human Rights 107, 120
[11] Kaime T, 'The African Children's Charter: Does It Represent a Relevant Vision of Childhood and Children's Rights.' (2009) 29(3) Child Legal Rts J 11, 12
[12] Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1985] 3 WLR 830, [1986] AC 112. See B (Child) No. B1/2003/1431, B1/2003/1432, [2003] EWCA Civ 1148 [12] and [33] in regard to the court deciding what the child’s best interest is. See the court emphasising the importance of the emotional and psychological well-being of the primary carer to the welfare of the child in Poel v Poel
1969 D. No. 474 [1970] 1 WLR 1469, 1471 and C P v A P [2001] EWCA Civ 166 [87]
[13] Ibid 171. See Reg. v. Howard [1966] 1 WLR 13, 15. See Gillick Competency Test being applied in D (A Child), Re [2017] EWCA Civ 1695.
[14] D Archard. and M Skivenes, ‘Balancing a Child's Best Interests and a Child's Views’ (2009) 17 International Journal of Children's Rights 1,11
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