IN THIS COLUMN IN 2008, I discussed the case of Russell Gorman Jr vs St Raphael Academy (2002), a decision of Fortunato J. of the Rhode Island Superior Court which dealt with the appropriateness of a hairstyle policy in a private school.
That case is worth reading if only for the quality of the reasoning and writing of the judge. Yet the decision was reversed on appeal mainly on the ground that a private educational institution had wide latitude to formulate its rules and that such contractual rules are enforceable as long as they are not against public policy.
In that case the material facts were:
A 15-year-old student Russell Gorman III was interviewed and accepted at St Raphael Academy, a private school, in January 2001. At the time of his admission no one took issue with his long hair, which fell six to eight inches below his shirt collar. There was nothing in the student handbook which prescribed or mandated hair length.
However, after Gorman had commenced classes, he was advised that he would have to cut his hair or face expulsion. A restraining order prevented any expulsion during the 2001-2002 school year, but a new student handbook was developed for 2002-2003 with a rule stating that hair could be no longer than the bottom of the shirt collar. Gorman and his family insisted that he be permitted to keep the style of hair he had at the time of admission until he graduated. Counsel for both parties approached the Superior Court for direction.
After reviewing the facts, the judge held that the hair code regulation was “arbitrary and capricious” in respect of its attempt to regulate the hair length of a male student.
Judge Fortunato began his 34-page judgment with the following quotation from Justice Thurgood Marshall in a dissenting judgment in a case called Kelley v Johnson (1976):
“If little can be found in past cases of this court or indeed in the nation’s history on the specific issue of a citizen’s right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question.”
The judge then stated the issue for the court’s decision in these terms: “May a private school admit a male student with hair growing to a point on his back well below the bottom of his shirt collar at a time when the school had no prohibition against such a hairstyle and about which no adverse official comment was made at the time of admission; and then, may that school later adopt a rule mandating that a male student’s hair be grown no longer than the bottom of his shirt collar and threaten to expel the student for not conforming his haircut to school regulation?”
The judge then observed that while the United States Supreme Court had not spoken directly on the issue “or on any contested private school rules regarding student deportment”, it had provided “general guidance to lower courts which are called to examine rules of private associations”. He then cited the case of Hebert vs Ventetuolo (1984) where the Supreme Court, according to him, had “articulated the general principle that there should be “no judicial interference with the internal affairs rules or by-laws of a voluntary association unless their enforcement would be arbitrary, capricious or constitute an abuse of discretion”.
For the purposes of the case the judge adopted the definition of “arbitrary” by the Supreme Court as the meaning ascribed to the word by common usage. An arbitrary action is one that “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense”.
The St Raphael Academy is a private school. The principal of the school was the only one giving evidence in the case on behalf of the school. Brother Aubin (the principal) had been principal of the school since August 2000. He said when he came to school he found it “lacking in discipline”. He testified that the existence of the haircut regulations would promote a culture of calmness and order in the school, thereby facilitating its mission.
The school’s mission statement as found in its student handbook reads:
“St Raphael Academy is a Catholic co-educational college preparatory school founded in the tradition of St John Baptist and rooted in the gospel of Jesus Christ. The academy welcomes a student body that is academically, economically and culturally diverse. Through its commitment to Christian values, the academy strives for excellence in all programmes for the spiritual, academic, cultural and physical development of each student. St Raphael Academy seeks to provide a safe environment that places priority on mutual respect as well as self-discipline. The academy prepares each student for a life dedicated to learning, leadership and service to the church and community.”
Towards the end of his judgment, the judge made these observations:
“The hair code regulation in the St Raphael student handbook for 2002-2003 is arbitrary and capricious so far as the regulation pertaining to the length of a male student’s hair is concerned. It is arbitrary and capricious because it bears no rational relation to the legitimate mission statement of the school, nor does it in anyway inhibit or enhance the learning process or order and discipline of the school. In short, the length of a male student’s hair is absolutely irrelevant to the educational process and the culture of calm and respect that the school wishes to foster during the school day.
St Raphael Academy functioned for many years without any such rule; and whatever disciplinary problems St Raphael had with its students prior to the arrival of Brother Aubin in the summer of 2000, none of them can be attributed to the length of a boy’s hair and Brother Aubin produced no evidence suggesting that they did.”
In the course of his judgment, the judge said that the essential weakness of the hairstyle rule was that the officials of the school retained an “unbridled discretion regarding the hairstyles favoured by students”. The judge said: “For example, Brother Audin testified that he permits cornrows to be worn by black male students, but prohibits a shaved head by any student, and is unsure as to what his response would be to dreadlocks styled by a black student; and he holds those positions even though the rule is silent regarding cornrows, a shaved head, and dreadlocks.
“Counsel for St Raphael was invited to submit any book or treatise he could locate on the connection between hair length and the educational process, but none was produced. I took it upon myself to review numerous writings on education, and philosophy of education, but could locate no statements regarding hair.”
The judge ended his judgment with the following:
“Private schools are licensed by the state to educate children in large part as they see fit, but with the express condition that they educate children to be citizens in a democracy. It would be anomalous indeed if people entrusted with this important mission were permitted to impose a 24-hour rule mandating a purposeless conformity to an arbitrary hair code. Democracy does not require – nor has it ever required – robots. Children protect themselves when they learn to question authority and say “no” to the arbitrary. Yesterday’s headlines teach us this. As Professor Chafee observed more than seven decades ago, “an institution which professes to prepare youth for life in a democracy might wisely give them an example of fair play when it is conducting its own affairs . . . .
“Lurking in the interstices of all arbitrary authority is usually some cruel irony. In the instant matter, it would be painfully ironic if students who affected the hairstyle of Jesus Christ and his disciples were barred from St Raphael while the school admitted and encouraged only those whose hairstyles mimicked those of the Enron and Crossings boards of directors.”
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@ caribsurf.com