Upholding a school’s uniform policy can be difficult legally, in terms of religion and race discrimination of pupils. Richard Gold looks at some example cases, in order to explain the relevant legislation
Fortinbras, in Hamlet, goes to war over ‘a little patch of ground that hath in it no profit but the name.’ In the recent case of Watkins-Singh, which reached the High Court, war broke out between a school and one of its pupils over a plain steel bangle about 5 millimetres wide. The bangle was a Sikh Kara, which is worn by Sikhs as a sign of their identity and faith.
The Kara did not meet the uniform requirements of the school, which stipulated that no jewellery other than a wrist watch and one pair of plain metal studs in the ear were permitted.
The school refused the pupil’s request for an exemption from the uniform policy and eventually took disciplinary action against her on the grounds of ‘open, deliberate and persistent defiance of the school’s authority’.
The school, in taking this action, no doubt had in mind the DCSF exclusions guidance — and believed that, by using a reason sanctioned by the guidance, it had made sure the exclusion was fire-proof.
The High Court
The case eventually reached the High Court, where the judge did not agree with the school, saying that it had not approached the issue in the right way.
The judge said that the school had not taken proper account of the fact that Sikhs are a racial group — like Jews but unlike Christians and Muslims — and are therefore covered by the race discrimination legislation.
The judge, Mr Justice Silber, was satisfied that the 14-year-old student was an observant Sikh and that wearing the Kara was particularly important for her.
If, as the judge found, the wearing of a Kara was a distinctive aspect of Sikh life or customs it followed that any action that made that impossible was potentially discriminatory.
In this case, the uniform policy that prevented the wearing of a Kara put Sikhs at a specific disadvantage that would not apply to another racial group. Sikhs, of course, were not singled out by the policy, so it was not direct discrimination — but because Sikhs were likely to be treated differently to other racial groups, the uniform policy was indirectly discriminatory.
Was discrimination justified?
Unlike direct discrimination which can never be justified, indirect discrimination may be justified if the discrimination is proportionate to the realising of a legitimate aim.
To quote a judge in the Court of Appeal in an earlier discrimination case: ‘The objective must correspond to a real need, and the means used must be appropriate with a view to achieving the objective and be necessary to that end.
‘So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group’.
It is a very stringent test and the onus is on the discriminator to justify the action — there is no presumption in favour, say, of a strict school uniform policy.
What should the school have done?
To avoid unjustified indirect discrimination, the school should have:
- considered the purpose of the uniform policy
- balanced whether the needs underlying that policy were so necessary as to justify overriding the student’s specific wish to wear the Kara as a religious symbol.
What the school did
The school tried to justify its approach by the usual arguments in favour of a strict uniform policy — prevention of bullying, the ‘floodgates’ argument for not allowing an exception, minimising differences of wealth, avoiding social pressures and competition — but the judge was not impressed.
The judge’s view
The judge felt that the small and unostentatious nature of the Kara meant that there would be no real effect on the effectiveness of the policy, and that allowing an exception on religious grounds would not open the door to widespread exemptions.
Accordingly, he held that the refusal to make an exemption from the uniform policy on religious grounds was unjustified indirect race discrimination.
The human rights argument
Interestingly, as with the other recent uniform cases, such as Begum (the jilbab), X v Y School (the niqab) and Playfoot (the silver ‘purity ring’), the claim by the student in the Kara case that the action complained of breached her human rights was rejected.
The threshold of proportionality, and hence the ease with which an action that may breach a right can be justified, is much lower when considering the European Convention on Human Rights than when considering unlawful discrimination.
So it is important to recognise that the racial element of this case makes it different from the other recent uniform cases that also had religious elements.
Thus, a crucifix or a purity ring for a Christian and the jilbab and niqab (both types of dress that cover, respectively, the arms and body, and the face) a Muslim, have great religious significance for many followers of those faiths but do not raise racial issues.
It follows that allowing this Sikh student to wear a Kara would not entitle a Muslim girl to insist on wearing a niqab. Indeed the case that held that a school was entitled to prevent the wearing of the niqab was decided by the same judge.
This demonstrates, as the judge said in virtually identical terms in both cases, that these cases turn on their specific facts and anyone wanting to use them as precedents for other situations will need to examine them very carefully and tease out any significant differences of degree and emphasis.
The judge clearly felt, and with good reason from the evidence in the case, that the school was not aware of how it needed to approach sensitive areas such as this one.
The judge was critical of the school but more so of the local authority for what seems to have been a systemic failure to advise the school properly on race and equality issues.
Inadequate school policy
The school policies — to the extent that they existed, which was doubtful — were inadequate. One policy, put forward by the local authority as an equal opportunities race equality policy, was nothing of the kind:
- It had been ‘borrowed’ from another authority and was no more than a set of guidelines on how to draw up such a policy.
- It was unsigned and there was no real evidence that it had ever been considered by governors.
Governors: the equality duty
The judge was relatively sympathetic to the plight of the governing body, who had to deal with complex issues without proper guidance or advice from the authority. He had, however, no option but to hold that the governing body was seriously in breach of its obligations.
In particular, it had not taken account of its general duty under S.71 of the Race Relations Act 1976, which requires that all maintained schools (along with a multitude of other public authorities) have due regard to the need to eliminate racial discrimination and promote equality of opportunity and good relations between persons of different racial groups.
The judge held that at root it was the failure to take S.71 into account that led to the unlawful racial discrimination.
A contrasting S.71 case
This is the second case in recent months to have raised the S. 71 question in a school context. The other case was R (E) v Governing Body of JFS, which raised fascinating issues relating to the relationship between religious and secular law in the context of school admissions.
In this case Mr Justice Munby, said that indirect discrimination arose from the application of the school’s admissions policy — but said that the discrimination was justified in terms of the legitimacy of the objective (preserving the ethos of the school). It was proportionate to that objective. The judge also held that the school had failed to meet its obligations under S. 71.
The difference here, though, was that the judge took the view that even if the school had complied with the section and had considered the effect of its policy on racial discrimination, equality and race relations, it would still legitimately have reached the same conclusion.
The claimant was entitled to a declaration that the school had breached its obligations — but was not entitled to have the school’s decisions set aside.
Why this case matters to schools
The judgment in the JFS case is of importance to all schools in all aspects of their policy-setting and implementation.
S. 71 is very widely drawn: ‘[the school] shall, in carrying out its functions, have due regard to the need:(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups.’
‘Its functions’ can apply to anything and everything that a school does, but clearly there must be some limits. The key is policy-setting, because if policies are set in a context of compliance with the section and are then implemented accurately, it should follow that the functions will be carried out correctly.
Lip service will not do. It is not enough to include a blanket reference to the section in governing body minutes. Cases in a different context make it clear that the governing body must diligently consider the issue — so minutes must contain sufficient detail to show, months if not years later when memories have receded, what was considered.
Schools need to be able to show a consistent and detailed record on this because no-one can predict the circumstances in which they may need to defend their position in court action. No governing body would want to be exposed to the sort of scrutiny and criticism that was the lot of the two schools involved in the recent litigation.
Has the law changed
The Kara case has led to the inevitable comments about inconsistency and the difficulty of knowing where the law stands, particularly on the question of uniform. There is some substance in this, because previous cases have quite clearly reinforced the entitlement of schools to establish quite stringent uniform policies and to enforce them.
On the face of it, the Kara case goes against the trend, and yet it was decided by the same judge who upheld the school entitlement in a case in which the student had equally strongly held religious convictions.
Saying that each case depends on its own facts may satisfy the lawyers but is not helpful to schools, especially those with a mixed ethnic population, trying to establish rational and consistent policies.
What are the guidelines?Unfortunately, there are no clear and universal guidelines. What the cases do show is that the entitlement of the individual student is strong and always needs to be taken into account.
The entitlement of the school community, as embodied in the governing body, though, is also strong. It is getting the balance right that presents the challenge. This can only be achieved by sensitivity and care.
Respect for student tradition
Requests from students for respect for their traditions must be taken seriously, although it is legitimate for the school to draw distinctions between passing style and properly rooted practices that are widely reflected in adult society and not merely in youth culture.
The courts are reluctant to impose their judgements on head teachers and governing bodies that have diligently teased out and considered the facts and who have rational and detailed reasons for the position that they adopt.
The outcome of the Kara case could have been different had the school approached it from the standpoint of the student, taking race discrimination issues on board in doing so, rather than taking a rigid stance based on an entitlement to have an unbreakable uniform policy.
Who, also, is to say that a more sympathetic and culturally aware approach by the school would not have led to a compromise position being reached?
A war with no winners
The judge seems to have been influenced in his judgement of the sincerity of the student by the way she put up with the isolation that she suffered at the hands of the school. Perhaps the school could have avoided boxing itself into a position in which it could not retreat without damaging its authority in the eyes of other students.
Hindsight makes it easy to say, but this is a war that need not have been fought and where there were no winners. The student lost a material part of her school life. The school lost money and reputation.
Indeed, a little patch of ground with no profit but the name and by the end, even the name was lost.
Find out more
- R (Watkins-Singh) v. The Governing Body of Aberdare Girls’ High School and Rhondda Cynon Taf Unitary Authority:  EWHC 1865 (Admin)
- R (on the application of Begum) v Denbigh High School  1 AC 100
- R (on the application of X) v Y School  2 All ER 249
- R (on the application of Playfoot) v Millais School  ELR 48
Richard Gold is a consultant solicitor on the education team at Stone King Sewell
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