Human Rights and Education Law: An Update

Posted On: 04 June 2009

Author: John McKendrick

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Human Rights and Education Law: An Update

John McKendrick
Advocate and Barrister

1. Introduction

1.1 This short paper presents an update on human rights decisions from a number of different jurisdictions in the field of education law.
1.2 The primary focus relates to the following areas of regulation:
1.2.1   school uniforms;
1.2.2   exclusion from school;
1.2.3   discriminatory treatment.

2. School Uniforms and Article 9

2.1 Four cases have been heard recently in England: R (Begum) v Denbigh High School [2006] 2 WLR 719; R (X) v Head teacher of Y School EWHC 298 Admin; R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698 Admin and R (Watkins Singh) v Governing Body of Aberdare Girls' High School and Rhondda Cynon Taff Unitary Authority [2008] EWHC 1865 Admin. In the first three the human rights arguments failed, only in the fourth case did the claimant succeed; but on the basis of domestic discrimination law provisions.

2.2 In R (ota Begum) v Denbigh High School [2006] 2 WLR 719 the claimant wished to wear the jilbab rather than the shalwar kameeze. For two years she had worn the shalwar kameeze and then contended it did not comply with her required religious observance. Three other schools within the claimant's catchment area permitted the wearing of the jilbab. The claimant spent two years out of school before she was admitted to a different school. The House of Lords rejected the claim. They set out the following: i. the wearing of the jilbab was a sincere manifestation of religious belief, therefore Article 9 (1) was engaged; ii. Article 9 (1) did not, however, require that people should be allowed to manifest their religion at any time and place of their choosing; iii. on the facts of this case, an interference could be not established because of Ms Begum's voluntary acceptance of a role which did not accommodate her right to practice or observe her religion and there were other means open to her to do so without undue hardship or inconvenience; and secondly because the claimant's parents had chosen for her to attend a school outside their catchment area in full knowledge of the school's uniform policy and there was no evidence to demonstrate another school which permitted the wearing of the jilbab was inaccessible to her. For similar reasons the A2P1 challenge also failed.

2.3  In X v Y the facts in issue were more sharply focused. The claimant was denied the right to wear the niqab although her three sisters had worn it before at the school with the full knowledge of the head teacher. X argued Begum could therefore be distinguished as she had not voluntarily accepted an accommodation of her religious beliefs and further she had a legitimate expectation of being permitted to wear the niqab. The court once again rejected the claim. Article 9 (1) was engaged, however, since she could have accepted an offer of a place at another school, which was easy for her to travel to, where she could wear the niqab, the manifestation of her religious belief had not been interfered with by the head teacher. Silber J took the view that "voluntary acceptance" was not required, it was sufficient an alternative school placement was available. Further, he went on to hold that even if there had been an interference, it would have been lawful because: a. it was prescribed by law; b. it was for a legitimate purpose and c. it was proportionate.

2.4 The sending of a letter home which laid out the prohibition was deemed to be sufficient to satisfy the 'prescribed by law' test. Silber J concluded the following amounted to legitimate purposes: a. encouraging pride in the school; b. enabling students to feel comfortable; c. ensuring students of different faiths felt welcome; d. encouraging a sense of cohesion; e. outlawing social pressures to conform to religious codes; e. security. The judge rejected the argument the wearing of the niqab could harm X's education, as this was out with "the protection and freedom of others".

2.5 In Playfoot the claimant, a 16 year old girl, insisted in wearing a purity ring to symbolise her commitment, as a Christian, to celibacy before marriage. Michael Supperstone QC, sitting as a deputy high court judge, concluded Article 9 was not engaged. The school argued it was only those practices required or necessary by the belief which would be protected by Article 9. The judge had some difficulty with this, and relying on Begum, took the view practices had to be "intimately linked" to the belief. The claimant was "under no obligation, by reason of her belief, to wear the ring, nor does she suggest she was so obliged". The deputy judge went to hold even if he were wrong on this issue, there was no interference (there being no evidence the claimant could not find another school where she could wear the ring) and further, that if there had been an interference, it would have been justified.

In Watkins-Singh the claimant's advisers changed tack and relied upon obligations under the Race Relations Act 1976 (as amended) and the Equalities Act 2006, newly brought into force.

(Continued. For full paper please click on the link at the top of the page.)