School uniform policies vs religious practices
Cases involving clashes between school uniform policy and religious practices can be very difficult for schools to handle. Legal expert Richard Wilkins discusses the issues arising from a recent case involving a student wishing to carry a Sikh blade, known as a kirpan, at school.
When a school asked me whether it could impose a total ban on pupils bringing in knives, you would have expected my advice to have been short: to the point, if you will excuse the pun.
After all, any school that would allow pupils to carry offensive weapons would surely have been an extraordinary proposition at any time, but particularly given the widespread concern about gang activity. Yet the question was far from ill-considered, and was of considerable urgency.
Sikh parents had just told the school that their son had recently become a Khalsa (or baptised) Sikh, and, in honouring his vows, was now carrying a kirpan – a small curved ornamental steel dagger – beneath his clothing.
While it was sheathed, it was capable of being unsheathed. It was not especially sharp, but it was not blunted either. It was worn following the 1699 direction of Guru Gobind Singh to Sikhs to wear a kirpan at all times to protect the weak from tyranny and slavery, and to safeguard the right of all to live their lives in a peaceful, stable and sheltered environment.
The concern was obvious. Whatever the purpose of the kirpan, it posed a potentially serious risk. The child in question might be tempted to use it, or threaten use. More likely, the kirpan could be seized and used by others, including against the Sikh child, who could be injured in attempting to stop its misuse.
There was a more mundane risk from accident involved in the carrying of a large hard object on the person, and this was particularly so in PE and other physical activities.
However, the school was genuinely sensitive to the family’s religious convictions and alive to the risks of alleged discrimination and/or breaches of human rights. What should the school do? What could it do?
Surprisingly perhaps, unlike the wearing of various forms of Islamic dress, chastity rings or non-uniform compliant hairstyles, including most famously “cornrows”, the ability of a school to ban a kirpan has never been considered by the British courts.
In 2009, a boy who was not prepared to compromise to the extent required by his North London school looked ready to sue, but the matter was not pursued.
My case had a happy ending. I advised the school to write to the parents inviting them in to discuss the matter urgently, and explaining ahead of the meeting the school’s concerns, but also its understanding of the relevant law in a non-technical way.
It was agreed that a modestly sized wholly symbolic kirpan would be worn instead. Such an outcome is not guaranteed: some Sikhs hold that rendering a kirpan incapable of its sacred function of defence, although it is extremely unlikely to be used, emasculates the power of its symbolism and breaks the Guru’s direction. This appears to have been the approach of the 2009 London family.
The law protects such religious expression from an unrestricted imposition of the school’s will. The Human Rights Act guarantees the right to: “Manifest ones religion or beliefs – subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”
The Equality Act protects against unlawful discrimination on grounds of race or religion (among other things) caused by applying a provision, criterion or practice which puts persons with protected characteristics at a disadvantage compared with those who do not share that protected characteristic. In this case an unbending ban on knives could disadvantage Sikhs exercising their protected characteristic of manifesting their religion, if it led to them being punished at school.
But as with the Human Rights Act, the right is not absolute and such “indirect discrimination” can be justified when a “…proportionate means of achieving a legitimate aim”.
It appears extremely unlikely that a total ban on knives would not be regarded by the courts as both “…necessary… in the interests of public safety” and a “proportionate means” of reducing the risk of assaults and accidents at school.
Still, the situation is not necessarily straightforward, as is clear from the fact that the criminal law stipulates that carrying a knife is not unlawful if “for religious reasons” (S139 (5) (b) Criminal Justice Act 1988).
Asserting the basic unlawfulness of the activity would be legally wrong, and unlikely to promote an amicable solution. Toleration of the kirpan is demonstrated by it being permitted amid the tight security of the Olympic Park this summer.
Still, toleration in the world at large is no answer to the specific demands of an environment populated largely by those who are legally considered to be children, and for whose welfare a school is legally and morally responsible.
But in seeking to encourage compromise care should be taken not to overstate the school’s approach to risk. Under supervision, knives and other highly dangerous items are not only entrusted to youngsters, but used by them.
In schools with cadet corps, this may extend to firing live ammunition. So saying the school has a “zero tolerance” policy is unlikely to persuade. The key is supervision – dangerous activities are (or should be) carefully supervised. Moving about the school normally permits less supervision.
Avoid the “Daily Mail defence”: the line that, while you are sure there is little risk, if there were an incident, others would be amazed to learn that the kirpan could be carried. A concern about the attitude of others will rarely justify your decisions. But, asking yourself whether you could properly justify your decision to those with a legal or moral right to call you to account, will help.
This includes other parents, but proceed with care. To the grieving or aggrieved parent, probably no risk of harm to their child will have been justified, but the mundane demands of design technology are likely to be more pursuasive than the more elevated ones of religious expression. They can exclude its claims. You can not. You must weigh them in the balance.
A word about necessity
It may be pressed on you that a total knife ban is not necessary, as steps can be taken to render the kirpan itself, or its context, safe. While those should be considered (and a rendering of a modestly sized kirpan practically incapable of harmful use would be very hard to resist, except in PE) the law does not expect you to have exhausted every option, nor will your view of necessity be defeated by any viable alternative.
You are accorded a significant margin, within which to make your decision. While your decision will not be justified merely by having been taken carefully, demonstrably weighing the alternatives and being fully informed about the significance of the practice, evidence of this will assist the court to find in your favour. This does not mean that your policy need be prepared ahead of the particular incident, though it helps. A considered and measured response to a particular need can be equally pursuasive.
While there are a number of technical differences from a practical perspective, the approach to decision-making goes a long way to explain why the school which banned “cornrow” hairstyles was unsuccessful at court, while that which banned the Islamic jillbab won (albeit only on appeal to the House of Lords).
In the former case, the ban on any deviation from the prescribed conventional hairstyle for boys followed no consultation (contrary to the Department for Education guidance) which might have assisted in showing that allowing the exception requested would, in the school’s words, lead to “huge pressure to unravel the strict policy that we have adopted”.
There was nothing wrong with “cornrows”, they said, but by making an exception to allow it, the school could “no longer justify a zero tolerance approach to all the various ‘popular culture’ hairstyles students might request to have” .
This “thin end of the wedge” argument suggests the suppression of a pupil’s legitimate requirements by the school’s fear of losing control to the mob. Like the “Daily Mail defence” it is a mistake easily made.
Rules are frequently made to protect against the abuses of the worst, for which the liberty of the better is curtailed. Such an approach is allowable where protected characteristics, such as race or religion, are involved, but needs to be very carefully justified. An argument that the school “would lose control”, without more, is hardly likely to impress.
Contrast this with the words of Lord Bingham in the jillbab case, which should give considerable comfort to school leaders: “Different schools have different uniform policies, no doubt influenced by composition of their pupil(s) … and a range of other matters. The school did not reject the respondent’s request out of hand: it took advice. It had taken immense pains to devise a uniform policy which respected Muslim beliefs.
“The rules laid down were as far from being mindless as uniform rules could ever be. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It would in my view be irresponsible of any court, lacking the experience, background and detailed knowledge of the headteacher, staff and governors to overrule their judgement (on) a matter as sensitive as this.”
Finally, returning to the kirpan, two practical tips – I have seen policies of varying quality. Too often they include a requirement that pupils waive any rights they have in respect of injury claims against the school. This is a fundamental error; such waivers are not enforceable. Similar results can be achieved by more careful language.
Second, while widespread consultation regarding uniform is the correct approach, the kirpan is different. Find out about local practice, but raising the prospect of knives being at school with all your parents and students is liable to lead to the absolute opposite of religious harmony, and precisely the kind of external pressure which the “cornrow” case suggests is inconsistent with best practice.
- Richard Wilkins is a partner at Berrymans Lace Mawer LLP. Email firstname.lastname@example.org.