Given Australia’s increasingly culturally diverse population, it is not an uncommon occurrence for some students’ cultural traditions to ‘innocently challenge’ a school’s rules or provisions of an Enrolment Contract. In these types of situations, it is very important that schools consider their obligations under the Anti-Discrimination Act 1991 (Qld) and the corresponding state legislation in other States. Last year, the Queensland Civil and Administrative Tribunal found that a School directly and indirectly discriminated against a young student, Cyrus, on the basis of his race (a claim for discrimination based on sex was unsuccessful).
Background
Cyrus’s culture that his family wished him to practise was a Cook Islands / Niuean culture. As part of this culture, the eldest son in a family does not have to cut their hair until they are around seven to eight years of age and it is cut in a ceremony which is a male rite-of-passage that symbolises a boy’s transition to manhood. Cyrus was five years old and his hair had not been cut since birth.
Cyrus’s parents signed an Enrolment Contract with the School which stated that they were aware of and accepted the school policies which included the Uniform Policy. The Uniform Policy stated amongst other things that:
“Boys’ hair is to be neat, tidy, above the collar and must not hang over the face. Extreme styles, pony tails and buns are not permitted.”
Early in the school year, the School’s Principal wrote to Cyrus’s family and advised them that Cyrus was in breach of the Uniform Policy. The Principal later advised Cyrus’s parents through an e-mail from the Deputy Principal stating that Cyrus would “have to have his hair cut as it is the school policy, cultural or not.”
Correspondence was exchanged between the parties and ultimately, Cyrus’s mother commenced proceedings in the Queensland Human Rights Commission alleging discrimination on the basis of race and sex.
Direct Discrimination – What Did the Tribunal Find?
In short, the Tribunal found that having long hair (because the cultural time for cutting his hair had not arrived) was a characteristic of the attribute that Cyrus’s mother complained of, namely his race. Accordingly, it held that the reason for Cyrus’s non-compliance with the Uniform Policy was because of a characteristic of his race (having long hair) and by proposing to unenroll him, the school treated him less favourably than a boy whose racial customs or beliefs were not compromised by the uniform policy. In light of this finding, the Tribunal held that the School had directly discriminated against Cyrus based on his race.
Indirect Discrimination – What Did the Tribunal Find?
The Tribunal also held that the School indirectly discriminated against Cyrus. Importantly, it gave some very significant commentary in relation to discrimination and school policies.
“While I accept that it is important for schools to have uniform policies that require certain standards of dress and appearance be maintained, I do not think it is reasonable to apply those policies without exception where exceptions are required for reasons based on race. It is reasonable that the school would approach such situations on an individual basis and not rigidly apply a policy inflexibly across the entire student population. I should add that all uniform policies are subject to such exceptions because they have been imposed by statute, namely by the Anti-Discrimination Act.
The school says that requiring Cyrus to comply with the policy is promoting equality and uniformity. That may be so in one sense, but such an approach fails to acknowledge the statutorily entrenched protections afforded by the Anti-Discrimination Act which apply a different concept of equality; namely, one that recognises the right to be different and to be treated just as favourably notwithstanding that difference.”
Outcome
The Tribunal did not award damages but required the School to write a letter of apology to Cyrus. The case also attracted national and international media attention.
Take Home Messages for Schools
The case clearly shows that regardless of the provisions of a school policy or rule, schools have a statutory obligation to ensure that they do not offend the Anti-Discrimination Act (or corresponding State Acts). Understanding a student’s culture and interpreting school policies and rules with flexibility is critical.
For more information contact our Education Special Counsel, Ben Foley.
This article was written by Ben Foley, Special Counsel. For further information please contact Danny Clifford, Director.
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