School uniforms, indirect discrimination and Jon Holbrook’s tweet

Resigned or expelled…

On 31 January 2021, barrister Jon Holbrook either resigned or was expelled (depending on whose version you believe) from Cornerstone Chambers following complaints about one of his tweets. Mr Holbrook retweeted a tweet from the Equality and Human Rights Commission (‘the EHRC’) celebrating the success of black A-level student Ruby Williams in fighting discrimination at her school. Ms Williams was repeatedly sent home from school on the grounds that her afro hair was not “of reasonable size and length”, contrary to the school’s uniform policy. With the assistance of the EHRC – the statutory body charged with enforcing equality law – she brought a discrimination claim. The school agreed to pay her £8,500 in settlement. Mr Holbrook commented that “the Equality Act undermines school discipline by empowering the stroppy teenager of colour”.

It is not always easy to reconcile school uniform policies with the requirements of equality legislation. School uniforms serve a legitimate aim: they deter bullying based on dress and they encourage students to identify with the school and each other. In some instances, however, provisions of a school uniform policy can cause difficulties for students from particular backgrounds and/or with particular characteristics.

Sikh

In the case of Mandla (Sewa Singh) v Dowell Lee [1982] UKHL 7, a Sikh boy wished to attend a school which prohibited boys from having long hair or wearing a turban. The principal issue for the House of Lords was whether Sikhs were a “racial group” for the purposes of the Race Relations Act 1976, there being no prohibition against discrimination on the grounds of religion at the time. Having held that they were, the Lords had no difficulty in finding that the two uniform rules in question could not be justified and were indirectly discriminatory.

In Watkins-Singh, R (on the application of) v Aberdare Girls’ High School & Anor [2008] EWHC 1865, the court found that a rule prohibiting a Sikh girl from wearing the Kara, a steel bangle customarily worn by Sikhs, was indirectly discriminatory.

In G v St Gregory’s Catholic Science College [2011] EWHC 1452, a claim was brought by a black boy against a school whose policy prohibited cornrows. In addition to the usual reasons cited for having a uniform policy, the school sought to justify the “no cornrows” rule on the grounds that permitting non-traditional haircuts would open the doors to other hairstyles such as “skinheads” that were associated with gang culture. The court was unimpressed, holding that there was “not a shred of evidence” that abandoning the prohibition on cornrows would entail that consequence.

In both cases, it was argued on behalf of the schools that the student was not compelled by their religion but was making a cultural choice; in both cases, that argument received short shrift.

Two Points

Two points can be taken from this potted history which are relevant to judging Mr Holbrook’s comment: firstly, while every case turns on its own facts, by 2011 (at the latest) it was reasonably settled that school uniform rules prohibiting hairstyles traditionally associated with a particular race or religion will usually be unlawful; secondly, this was not a new development under the Equality Act 2010 – indeed, in G, the court held that the new law was substantially the same as it had been under the Race Relations Act 1976.

Some have queried whether Mr Holbrook’s comment was racist. It is fair to say that “stroppy teenager” is a common phrase without any racist connotations. However:

1. There is no evidence in the public domain at all from which one might reasonably conclude that Ms Williams’ behaviour was “stroppy”. She stuck to her guns on a matter of importance to her and she was vindicated by the school’s decision to settle. Her principled conduct should be applauded, not belittled. Furthermore, the dignity with which both Ms Williams and her mother have responded to Mr Holbrook on Twitter suggests that “stroppy” is some way wide of the mark.
2. “Stroppy teenager of colour” is uncomfortably close to the racist trope of an “uppity” black person, with its implication that black people should know their place and be grateful for what they have instead of campaigning for progress.
3. The implication that Ms Williams’ claim was a new and unwelcome development “empowered” by the Equality Act ignores the history of successful claims under the pre-existing legislation as set out above. A review of the case law also demonstrates the spuriousness of the claim that allowing hairstyles like Ms Williams’ “undermines school discipline”.

Conclusion

There is, unfortunately, a point at which ignorance crosses over into malice, particularly in the case of a barrister who has no good excuse for not knowing the law. A glance at the rest of Mr Holbrook’s Twitter tends to eliminate any lingering doubt: all the usual alt-right obsessions are on show, from unfounded allegations of fraud in the US election to complaints about the slavery report commissioned by the National Trust. We reluctantly conclude, therefore, that his comment likely was racist, at least in the sense of being a “dog whistle” (i.e. an ostensibly innocent statement designed to elicit approval from racists).