Discrimination in Schools – Uniform policy vs. Religious beliefs

We aim to deliver Just, Redemptive Outcomes®

In schools, there can be a fine line between enforcing compliance with uniform policies and the need to accommodate a student’s cultural and religious beliefs. Failing to understand when indirect discrimination may arise on the ground of religious beliefs can be a source of real difficulty for schools across Australia, and particularly is a more pronounced issue in schools with a religious background or mission perspective.

In Australia it is widely accepted that sensitivity must be given to students and their family’s religious convictions, especially when it comes to religious attire. This is reflected in the various State based anti-discrimination legislation across Australia, and it is important that educational institutions are aware of the applicable legislation and its application to student enrolments. Anti-discrimination legislation applies to all facets of education including the terms of student admission and enrolment. Whilst, having a school uniform is important in promoting school identity and integration, schools must be careful that the school’s uniform policy is not unreasonably enforced in a discriminatory manner.

Arora v Melton Christian College (19 September 2017 – VCAT)

The recent Victorian case of Arora v Melton Christian College [2017] VCAT 1507 (19 September 2017 – VCAT) is noteworthy as it highlights the need for schools to consider enforcement of its uniform policy without discriminating against the religious belief or culture of students (or potential students).

Summary of Facts

This case involved a five year old boy, whose parents sought to enrol in the College. In processing the enrolment, it appears that the College refused to make exceptions regarding the application of the uniform policy for the child. At the relevant time, the child had uncut hair (a kesh), and wore a head covering called a patka.

Having kesh is a Sikh religious belief, and wearing a patka is an essential practice or activity of being a Sikh.

On the other hand, the College had a uniform policy in place at the relevant time said that boys must have short hair, and may not wear any head coverings related to a non-Christian faith.

Allegedly, the College refused to make adjustments to their uniform policy to accommodate the child’s uncut hair and head covering.

The child’s parents brought a complaint to the Victorian Equal Opportunity and Human Rights Commission on the basis the school had discriminated against the child under the Equal Opportunity Act 2010 (Vic) (“EO Act”). This gave rise to a complaint of Indirect Discrimination, in that requiring the child to comply with the College’s Uniform Policy was not reasonable. The Applicant alleged that the College contravened the EO Act by discriminating against the child in:

  • Making a decision not to admit the child as a student;
  • Refusing or failing to accept his application for admission of the child as a student; and
  •  Proposing to admit the child under the term that they comply with conditions it the College’s uniform policy.

In the complaint, the child’s parents relied on sections 9 and 38 of the EO Act which prohibits direct or indirect discrimination on the basis of a person’s religious belief. Similar provisions apply in Queensland’s Anti-Discrimination Act 1991 (Qld).

In its defence, the College made a number of claims, including (without limitation):

  • The child was not disadvantaged by not being able to attend the College;
  •  Even if the child was disadvantaged, the requirement that he comply with the College’s uniform policy was reasonable;
  • Even though the College did not make an exception to its uniform policy for the child, it was not done on the basis of the child wearing a patka;
  •  Even if the College did contravene the EO Act, it relied upon the exception that:
  1. The educational authority operates a school for students of a particular religious belief to exclude students who are not of that particular religious belief; and
  2. The exception which allows an educational authority to set and enforce reasonable standards of dress, appearance and behaviour for students.

The Findings of the Tribunal

Ultimately, the Tribunal held that the College had contravened the EO Act, and the exceptions relied upon by the College did not apply in these circumstances. We summarise some of the critical findings of the Tribunal as follows:

  • The Uniform Policy amounted to a requirement, condition or practice imposed on the child.
  • The child was subjected to disadvantage, in that the College was located in a convenient position for the child’s family, and his cousins also attended the College.
  • The requirement for the child to comply with the uniform policy was not reasonable.
  • The burden of proof was on the College to prove whether the requirement was reasonable, and this was a question of fact and requires an objective assessment of all relevant factors. A reasonable requirement was held to be less demanding than necessity but more demanding than convenience, and required the Tribunal to weigh the nature and effect of the discrimination against the reasons in favour of the requirement.
  • The disadvantage suffered by child was “reasonably significant”.
  • The College argued that the uniform policy was intended to achieve a number of objects, including a common identity, community, sense of purpose, inclusivity and protection from discrimination.  The Tribunal found that there are a myriad of ways to achieve this without imposing a discriminatory requirement. Additionally, there was also no evidence that the Uniform Policy achieved these outcomes, particularly where the College also had a bullying policy and expects teachers to treats all students equally.
  • The Tribunal was not satisfied that the uniform policy (as amended in 2014) reflected the views of the school community at the time.
  • The disadvantage suffered by the child was not proportionate to the results sought by the College in imposing the uniform policy on the child.

 

Could the School rely on any exemptions?

In certain circumstances, exemptions from the application of anti-discrimination legislation may apply. Melton Christian College sought to rely on two exemptions set out in sections 39 and 42 of the EO Act  , which state:

  • Educational institutions operated wholly or mainly for students of a particular religion, may exclude applicants who are not of that particular religion.[1]
  • Educational institution may set and enforce reasonable standards of dress, appearance and behaviour for students but must take into account the views of the school community in setting the standard[2] (a specific exemption in the Victorian legislation).

Under the first exemption, the College was required to prove that the school operated wholly or mainly for students of a particular religion. The onus to prove the exception applied was on the College and the College argued it operated wholly or mainly for students of the Christian religious belief, and may exclude persons without those attributes.

However the Tribunal held that this exemption did not apply, and that:

The College had a open enrolment policy (just over 50% of families did not identify as Christian).  It was not reasonable to accept enrolments from non-Christians on condition that they do not look like “non-Christians”.

The Tribunal held that the College does not exclude persons with other non-Christian religious beliefs, and noted that the College would have made exceptions to the uniform policy if the proposed student had medical circumstances that warranted so.

Rather, the child was excluded because of his religious belief regarding hair cut and head covering, not because he was a non-Christian. The Tribunal noted that the College accepted the child’s cousin’s enrolment into the school (that were of the same religious faith as the child). On these findings, the Tribunal found that the child was excluded for his religious belief regarding the hair cut and head covering, not because he was a non-Christian.

Under the second exemption, the College argued that they were entitled to set reasonable standards of dress, appearance or behaviour for students, so long as they take into account the views of the school community.

However, the Tribunal held that this exemption should be read narrowly and strictly, as it only allows the College to set and enforce reasonable standards of dress, appearance and behaviour. It does not allow the College to exclude persons seeking to be admitted where they are unable to comply with the Uniform Policy due to their religious belief or activity.  It was for this reason the Tribunal held that the exemption did not apply.

Additionally, the College did not take into account the views of the College Community at the time, and, separate from this exemption, the Tribunal also noted that the College could have made reasonable adjustments to the uniform policy by requiring the child to wear a head covering of the same colour as the school uniform.

How could this apply to your school?

It is clear from this decision that a generalised and strict application of a uniform policy may cause a College to be in breach of its obligations under anti-discrimination legislation. Particularly for Colleges with a religious background or mission perspective, and in an increasingly diverse population in Australia, Colleges need to carefully consider whether their uniform policies might offend current anti-discrimination legislation.

Exceptional circumstances may apply which may allow an exemption. However, a cautious approach with professional advice should be adopted before seeking to rely on these exemptions, particularly with many schools adopting an open enrolment policy.

Placing conditions upon a child’s enrolment that conflict with their religious convictions may lead to legal action for discrimination. When creating, or enforcing policies, schools must be mindful these policies are not indirectly discriminating against students with different religious beliefs (or, for that matter, any protected attributes under the anti-discrimination legislation) and make reasonable adjustments to policies for students who cannot reasonably comply with the policy.

Contact our School Law specialists

We’re here to help guide you through your School Law legal matters after separation. Please call our Brisbane School Lawyers  on 07 3252 0011 to discuss how we can help you.

Article prepared by James Tan (Associate), Jessica Lipsett (Senior Lawyer)

 


[1] See Equal Opportunity Act 2010 (Vic) s 39

[2] See Equal Opportunity Act 2010 (Vic) s 42