Cultural diversity calls for comprehensive policy. But what if it doesn’t cover the case at hand? Use common sense and consultation, says Michael Brotherton
One of the functions of a school governing body is to decide whether there ought to be a school uniform, and to consider other rules relating to appearance (for example hair colour and style, the wearing of jewellery and make-up).
But governors do not have a free rein — they must take law and guidance into account, and be aware of religious and racial discrimination issues. This article sets out the latest law.
Two recent cases have raised the issue of school uniform and religious belief. Uniform policies may interfere with the human right to manifest religion or belief. Both cases highlight the importance of a school consultation with the local community.
The Begum case
In this high-profile case Shabina Begum claimed that her right to education was denied when her school said she could not attend wearing jilbab, a long flowing gown covering all but the face and hands, believed by some Muslims to be a religious requirement.
Ms Begum said that refusal to allow jilbab was discrimination on the basis of religion, since she had been denied her right to education on the basis of her religion. The House of Lords disagreed. The school had not breached Ms Begum’s right to manifest her religious belief, because she had always had the option of attending another state school that allowed the jilbab.
The niqab case
In the more recent case of R (on the Application of X) v Y School (2007) the High Court supported the decision of a school not to allow a female pupil to wear a niqab (face veil).
The principle behind the claim was that on reaching puberty, the pupil was required by her religion to cover her face in the presence of men other than immediate family, and that the school’s uniform policy did not expressly forbid the niqab from being worn.
The legitimate expectation point failed because there was no evidence of a regular practice, which the girl could reasonably expect to continue, and the school could not show that it had adopted a regular practice in relation to the niqab.
Different treatment justified
This girl’s case was not identical to that of her sisters (and so different treatment was justified) owing to: the time between the girl and her sisters’ attendance; and the fact that there had been a change of head teacher and changes in policy (which the school was entitled to introduce).
Article 9 claim
The article 9(1) claim failed because there was a place available at an equivalent school that would let the girl wear niqab. Article 9(1) does not say that one should be allowed to manifest one’s religion at any time and place of one’s choosing.
The court agreed with the school’s submission that, even if article 9(1) had been breached, the school could rely on article 9(2) which says: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety … or for the protection of the rights and freedoms of others.’
The school could rely on this on the basis that the stated objectives of having a school uniform were sufficiently important to be justified, even if they involved an interference with the basic right.
The prohibition of niqab was connected to this objective and was based on proper considerations relating to effective teaching and learning, and school security.
The influence of Begum
The court looked at guidance from Begum on the margin of discretion given to the decision-maker. The judge said it would be ‘irresponsible’ of a court lacking the experience and detailed knowledge of the head teacher, staff and governors, to overrule their decision on a matter as sensitive as this.
This was noteworthy because the fact that one school was happy to allow the niqab (and so did not consider challenges to effective teaching and learning and school security insurmountable) did not mean that another school was prevented from arguing the opposite.
Provided that the reasoning is clear and justified, then the decision-maker is likely to be supported.
Implications for schools
The court emphasised in its judgment that the case was fact-sensitive and did resolve the issue of whether niqab should be permitted in schools — but the findings were such that schools can take comfort from the same when issues concerning uniforms and religious beliefs arise.
Manage your own affairs
The case of R v Y School is an example of a pattern: the courts are increasingly reluctant to impose their own views over properly thought through views of head teachers and governing bodies.
We are seeing courts in effect providing support to schools in managing their own affairs and while this approach continues — and there is no reason to suppose that it is just a passing phase — schools can feel relatively confident that the risk of successful litigation over policies and management judgements is small.
Good practice lessons
In the Begum case the policy under challenge had been the subject of extensive debate and consultation, and the pupil knew jilbab was forbidden before she chose to attend that school.
The policy in the case of R v Y School, however, had not been subject to the same degree of consideration: the pupil did not know that she could not wear the niqab, and niqab was not expressly forbidden.
The head teacher was therefore faced with a situation that was not covered by the existing written policy, which had to be dealt with immediately.
The head teacher made extensive but speedy enquiries and took advice from the local authority and Muslim community figures on the niqab before deciding not to allow it.
Whilst the head teacher made no formal change to the school’s uniform policy, the level of enquiry and consideration was held by the court to be sufficient to uphold what was, in fact, an extension of the school’s formal policy.
So, responding rationally and sensitively to an unusual situation is likely to be supported if challenged. It is a principle of wider application than just to the question of school uniform.
The DfES last issued guidance on uniform policy in 2002. But, partly in the light of R v Y School, the DfES has issued a consultation document (consultation period ends on 12 June 2007) — so that it can provide clearer guidance on the issues a school must deal with in formulating uniform policy.
This draft document emphasises the importance of consultation, the requirement to consider the needs of particular groups, and the importance of documenting (and retaining the evidence of) the process of consultation. Schools do not know when a challenge might arise and should keep well-organised records to avert unnecessary stress.
‘Meeting muslim pupils’ needs’
The Muslim Council of Britain has produced a document, Meeting the needs of Muslim pupils in state schools, which tackles the issues that it feels schools ought to be aware of in accommodating the requirements of Muslims when formulating a uniform policy.
For example, schools should allow Muslim girls to wear a full-length loose school skirt or loose trousers, a long-sleeved shirt, and a headscarf to cover their hair. The aspect of uniformity would apply where the school may specify, for example, the colour of the scarf.
The guidance goes far wider than just uniform policy — tackling issues such as physical education, Ramadan, educational visits and food. It is in effect an effort to demonstrate what might be regarded as ‘best practice’.
Race relations law
Governing bodies are required to have regard to their responsibilities under the Race Relations Amendment Act, 2000, which requires them to assess the impact of all policies, including uniform or dress codes, upon all pupils.
It is recognised that school uniform plays a valuable role in encouraging identity with the school, supporting positive behaviour and discipline and protecting children from social pressures to dress in a particular way. But a school will open itself to criticism if it fails to engage the local community in its consultation process — because it would not be able to show that it has given proper regard to all sections of the community.
Click here for a special bulletin on school uniform legal questions
Michael Brotherton is a solicitor in the education team at Stone King LLP.