W Cape school overstepped constitutional bounds
A school that barred two Muslim students after they refused to remove their religious head dress has contravened the Constitution.
The Western Cape education department has urged a Kraaifontein school to resolve the situation in which two siblings were prevented from attending school unless they agreed to remove their religious head dresses.
Die Burger on Wednesday reported that siblings Sakeenah (16) and Bilaal Dramat (13), new students at Eben Dönges High School, have not attended school for five days after the school's principal, Wilfred Taylor, told their parents the children would not be allowed into the school as long as they wore their head dresses.
Muslim women typically wear scarves to cover their hair; it’s also common for Muslim men to wear fezes, which resemble yarmulkes, on their heads.
On Wednesday, Taylor declined to comment on the matter and referred questions to the provincial department.
Department spokesperson Paddy Attwell told the Mail & Guardian that a meeting between the school and the children’s parents would hopefully take place on Wednesday.
“Our district officer has discussed the issue with the school in-depth and has also written to the school to notify the principal that he must meet the learners' parents as a matter of urgency to resolve the issue,” he said.
“We believe it’s a simple matter to accommodate learners’ religious beliefs by adjusting dress codes as required. We strongly urge schools to follow national guidelines on school uniforms.”
'A case of discrimination'
The national guidelines on school uniforms specifically state that: “If wearing a particular attire, such as yarmulkes and headscarves, is part of the religious practice of learners or an obligation, schools should not, in terms of the Constitution, prohibit the wearing of such items.”
Attwell said that the national department had publicised the guidelines, which are also available on the department’s website. “We urge all schools to examine them,” he said.
Constitutional law expert Pierre de Vos was surprised by the position taken by teachers at Eben Dönges High School. “I cannot believe that a school can be this stupid because often a legal question has two sides. This case is very clear-cut,” said De Vos.
“This is clearly a case of discrimination.”
De Vos said that one needed only to follow the logic of the “nose stud” case to arrive at the conclusion that what was needed in the situation was “reasonable accommodation”.
“You cannot have rules that seem to apply to everyone but really effectively exclude or discriminate against one group. You cannot say no one is allowed to wear headscarves because you're really just targeting one group,” he said.
De Vos said that in terms of both the Constitution and the Equality Act, schools should take steps to accommodate diversity. “Your code of conduct cannot reflect the world view of the dominant group only without taking into account those who are different,” he said.
In the landmark “nose stud” case, which dates back to 2005, Sunali Pillay, a Hindu student at Durban Girls High School, refused to remove her nose stud on religious and cultural grounds. The school demanded she remove the nose stud as it contravened the school’s code of conduct, or face a disciplinary tribunal.
Following a lengthy legal process between the school and Sunali’s mother Navaneethum, the Constitutional Court ruled that Sunali had been discriminated against on the basis of both religion and culture in terms of section 6 of the Equality Act.
Former chief justice Pius Langa said that while uniforms serve an important purpose, this purpose would not really have been furthered by refusing Sunali an exemption from the school code. Allowing the stud would not have imposed an undue burden on the school, he said, and a reasonable accommodation would have been achieved by allowing her to wear the nose stud.
Langa's ruling did not abolish school uniforms but it did require that schools make exemptions for sincerely held religious and cultural beliefs and practices. This has now been reflected in the education department’s national guidelines.
Hailed as a landmark case on religious and cultural expression in public schools, the case was praised for providing guidance on how to accommodate diversity in society.