School rules, hair and the Constitutional Court: the path laid by Pillay

As learners across the country challenge racial discrimination at their schools, and governing bodies begin to update their codes of conduct in response, it is useful to take a break to consider what the Constitutional Court has said about schools, rules and inclusiveness. It is time to consider the case of MEC v Pillay.

In the spring of 2004, Sunali, a learner at Durban Girls’ High School, arrived at school with a small gold stud in her nose, which her mother had given as part of a Hindu coming-of-age tradition. The school concluded that the stud violated its code of conduct, and refused to grant her an exemption. She was told to remove it. When she refused, the school started disciplinary proceedings and her mother responded by taking the school to court.

The case ended up at the Constitutional Court, which held that the school had unfairly discriminated against Sunali by refusing to grant her an exemption. The Court also ordered the school to revise its code of conduct, in consultation with parents, learners and teachers, to allow more clearly for religious and cultural exemptions.

Twelve years later, with schools revising their rules in response to learner activism, Pillay remains relevant.

Most importantly, the Constitutional Court emphasised that diversity is not something to be feared, or even only tolerated. It is to be celebrated. As stated by Chief Justice Langa:

‘As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a “parade of horribles” but a pageant of diversity which will enrich our schools and in turn our country.’

The late Chief Justice was writing about religion and culture, but the point applies to all dimensions of South African diversity, including race. Thus, black hair, whether natural or styled, ‘is not an aberration that should be tamed and controlled’ but something that our schools should welcome and celebrate. The same applies, of course, to African languages.

The Chief Justice also noted that ostensibly neutral rules can nevertheless be exclusionary. The rule prohibiting Sunali’s nose stud was ‘not neutral’ but enforced ‘mainstream and historically privileged forms of adornment … at the expense of minority and historically excluded forms’. Ostensibly neutral rules on hair or language can be like this, except that many of the rules being questioned today exclude the majority, not a minority, of South African children.

Finally, the Court emphasised the importance of public participation in creating codes of conduct. This not only increases the legitimacy of a code, but also ensures that the code reflects the culture and experiences of the entire school community. Today’s controversy over hair illustrates the point. If the governing body of a former Model C school is mostly white, but the school body is more diverse, the governing body will struggle to create rules that accommodate students’ experiences unless the two have an earnest and robust conversation.

Of course, many of the rules and practices being challenged today are far more obviously problematic. One should not, for example, need a lovingly-crafted Langa judgment to know that a ban on speaking African languages has no place in democratic South Africa. But Pillay can help with the creation of rules that ensure order, but that do not discriminate.

Ultimately, school codes of conduct must celebrate diversity and be conscious of their potential to exclude, particularly in relation to hair and language, but also more comprehensively. As our schools revise their codes of conduct, they would do well to pause and give Pillay a read.

Piet Olivier is Legal Researcher, Helen Suzman Foundation.

This article first appeared as an HSF Brief.