Why would you litigate over the length of your hair?
[ jose inesta ] A fox demonstrates the appropriate length of fur for compliance with Sherwood Forest's hair, fur and wool-length rule.
WHY WOULD YOU LITIGATE OVER THE LENGTH OF YOUR HAIR?
There's a trend at the moment, either in real life or in media reporting, for students to litigate the disciplinary decisions of their school boards. There was the guy who was suspended for over four weeks because he would not cut his hair, the elite rowers who messed around with airport security, and most recently the young man in Hornby who won't shave.
You could say so much about this trend, and the comments sections on articles about these cases light up with chatter when the articles are published, but three things in particular occur to me, from the point of view of a litigation lawyer and former adolescent.
1. The move toward greater advertence to the interests of students is GOOD
Consider this passage from Battison v Molloy  NZHC 1462, the case about hair length:
In M v S McGechan J recognised the severity of the consequences of expulsion or suspension on a student. McGechan J observed that no one should underestimate the capacity of a student to perceive and feel injustice, and therefore the Court had to be concerned not only with “a public interest in orderly education, but also [with] a need to protect the individual child, and that child’s confidence [he or she] can receive justice from authority”. McGechan J recognised the need to ensure the consequences for a student of suspension or expulsion would not be “disproportionate”.
In my assessment, the legislative developments since the Court of Appeal decided Edwards, combined with the obligations New Zealand has under the [1989 UN Convention on the Rights of the Child] and the effects of the [New Zealand Bill of Rights Act 1990], mean that it is no longer appropriate for the High Court to take an approach in student disciplinary cases which fails to give appropriate weight to the rights and interests of a student.
I know there are cases where the extraordinary freedom we have to hold authority figures to account is exploited (in the US especially, but increasingly in New Zealand too). And I know that authority figures like principals and school boards have a tremendously difficult, complex, job, and the intrusion of the Court may seem impractical and unreasonable.
But even if the move towards greater respect for the child yields some of those cases, you know what else it yields? The possibility that real injustices, at a time of immense vulnerability and fundamental development, might get corrected. That kids have the chance to learn that they don't have to accept real injustice.
The balance between "get on with it and don't make a fuss" and "stand up and make yourself heard" is a hard one for parents; both are needed in a civilised society. I think, though, that it's a good thing, a really good thing, that as a society we have a means to question bad or arbitrary decisions like this, especially when they relate to children. The input and oversight of the Court can be the check and balance that weeds out the corrupt, unreasonable, unfair decisions.
2. Some rules exist to protect the vulnerable
In the case of the Hornby student who won't shave, I think something else is going on. Adolescence is a time when the need to fit in, belong, not stand out, is acute. It's a biological need. It's also a time when some of the most horrendous bullying and intimidation, including violence, is carried out against those who don't fit the mould, and often this happens without reproach, since schools and parents and society more generally don't quite know what to do about it.
In that context, rules that reduce the opportunity for differentiation can equalise otherwise different people, and lessen the chance that isolation or bullying will get in the way of, y'know, getting an education. In the case of the facial hair rule, it must be at least part of the basis for the rule that not all boys of high school age can grow facial hair, and there is a risk that those who can't will be bullied because they can't.
We don't have nearly enough of a spotlight on how cultural ideas of masculinity damage men and boys, but it's pretty easy to foresee the possibility of a less-developed boy being bullied by more developed boys. It's easy to foresee because we know it already happens. Why not reduce the chance of that a little by making the differences less obvious?
Of course the kid's desire to be, physically, who he is, is completely understandable, and certainly arguable. However, I hope that whoever is acting for the board if that case goes to court will make the point above.*
3. There is a place for litigation in this context
It's easy to group all these cases together as parents indulging their children instead of teaching them about, for example, personal consequences (the rowing case) or the wider context of rules (the facial hair case). In some cases that must be going on, I have no doubt, and in most cases I would be counselling strongly against going to court.
However, in other cases, there is a real injustice in play, and the more important lesson for the child may be that they have the power to effect change.
Of the three cases I've listed up there, the one involving the kid who wouldn't cut his hair is different from the others. In that case, the school:
- had a pretty vague rule about hair length;
- did not entertain a solution that would have complied with the rule (hair tied into a bun);
- refused to attend mediation; and
- suspended the kid indefinitely until he cut his hair, with that suspension only ending after four weeks, when the Court ordered the school to let him return pending its decision.
You could say that the kid should have just cut his hair. Maybe he should have. Court is expensive and adversarial and uncertain. A haircut is cheap, easy, and final.
But in that case the school's penalty was so extreme and so disproportional (indefinite suspension until the hair was cut), and the school so unwilling to bend, that the better response may well have been to go to court and hold those decision-makers to account.
I always say that litigation should be a last resort. Finding a way to accept unjust circumstances and move on is often a much better use of your time and effort, at least where there is no ongoing issue between you and the other people involved. But there is value in challenging decision-makers to comply with the legal restrictions on their power, especially when what is at stake is your ability to attend school.
* Also, the kid's mother says she objects to the rule because it's "sexist", which I find strange. Granted, it's a rule that has no effect on girls. In that sense it is a restriction based on sex. However, a technically sexist rule may still be upheld as reasonable for other reasons, and in this case, given my point above, the argument seems a weak one.