The Supreme Court Ruling: The Logic of ‘confirmation bias’

The written judgement of the Supreme Court has provided a clear perspective as to the basis of its decision on the matter of Dale and Sherine Virgo v. Kensington...

The written judgement of the Supreme Court has provided a clear perspective as to the basis of its decision on the matter of Dale and Sherine Virgo v. Kensington Primary School, the Ministry of Education and the Attorney General. The questions the court sought to satisfy was:

(i) whether Kensington’s unwritten policy of “no braids, no beads no locks”, violated the constitutional rights of the claimant, and

(ii) whether “a decision of choice of personal expression, taken by a child and their family can be imposed on a school in contravention of school rule and policy.”  

Of note is the fact that the policy was instituted “to maintain an acceptable level of hygiene… and to maintain discipline in order to ensure effective teaching and learning time…”

The question is, ‘Why are braids, beads and locks hair styles unhygienic? Has this been clinically proven, or is it simply an argument to justify or mask a much deeper prejudice?’

The fact that there may have been unhygienic hair styles in the past does not justify a policy of discrimination. When workers were made redundant in the case involving the Jamaica Flour Mills v. the IDT and NWU [1999] without regard for due process, the argument to justify management’s action was that workers in the past had sabotaged the plant. This argument was flatly rejected by the Court of Appeal, and later the Privy Council.

Then we hear that braided hair and locks actually disrupt the learning and teaching process. ZV did exceptionally well during her two years of attending Kensington, and there is no evidence of any complaint from parents, or any teacher for that matter to say that the locks ‘disrupted effective teaching and learning’.

We now know that had the Virgos declared their faith as Rastafarians the ruling would be different as their right under section 13(i)(ii) of the Charter of Fundamental Rights and Freedom, guaranteeing them “the right to freedom from discrimination on the grounds of race, place of origin, social class, colour, religion or political opinions,” would have been violated.

Of course, there is the issue of race and social class, which is much harder to prove. So too, I believe that the right to ‘freedom of thought, conscience and belief’, transcend notions of preference or style and has to be grounded in much deeper arguments.

Outside of the clear ambit of the law there is the contention of judicial philosophy. Legal scholars and researchers have long explored the notion that it is ‘aesthetically pleasing’ to regard judicial decisions as rooted in arguments that are both mechanical and syllogistic. They recognise, however, that judges too are creatures or captive of personal values. This is why US President Donald Trump had, quite early in his Administration, sought to appoint conservative judges who believe the law can only be understood by examining the text, original meaning and court precedent on matters before it. He no longer wishes to contend with the views of liberal judges who are much more flexible in their approach to judicial philosophy. They draw on other jurisprudence and invoke their own value judgements.

This is a matter we cannot escape. The psychological phenomenon of ‘confirmation bias’ is said to be deeply ingrained in human nature and behaviour, and therefore we seek out and attribute weight to evidence that support our own hypothesis. 

This is clearly what happened in the Virgos case — notions of social class, race and beliefs were attributed weight far less significant than a verbalized policy that is illogical as it is inherently discriminatory. It is a self-made case that clearly violates the fundamental rights of any citizen to tell a religious person that they ought not to wear his/her hair, or clothing that is reverent to their faith. But the violation of one’s fundamental rights on the basis of race or social class is largely going to be settled on our own prejudices and value judgements. Any ruling would undoubtedly bear this out.

While the Supreme Court’s ‘errors’ of judgement may seem to be harmless beyond a reasonable doubt, clearly its decision to discriminate against a child of African descent who desires to wear her hair in dreadlocks fashion ignores the wider social context in which we celebrate emancipation and independence. There inheres in the judgement a strong presumption that notions of race and social class are no longer deeply entrenched in the psyche of modern-day Jamaica.

The extent to which matters of social considerations are of probative value in cases of this nature will, again, depend on the perspective you want to uphold. Law is said to be a technique for social power which rests on the foundations of wealth, social influence and personal prestige. It permeates social life and influences norms, values and understandings of our existential reality. 

What message, therefore, do we send to people of African descent, in a society built around the motto that ‘out of many we are one’, when the seeming quality and texture of our hair is made to seem wrong? The Court’s mechanical and syllogistic arguments betray an extraordinary void in our thinking about relationships of social conditions, social ideas and the creation and interpretation of race and social class.  Jamaica’s history simply cannot be ignored in any judicial ruling on matters of this nature. 

The extent of our professional achievements has done nothing to address the interiority of a social class that continues to live in the shadows of colonial modernity. Its legacy defines the Afro-Jamaicans — in the words of Sylvia Wynter — as “waste products of the system;” and sadly, 58th years after Independence and on the eve of the celebration of Emancipation Day, Wynter’s statement has been “demonstrably justified” by the Supreme Court’s ruling.

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