Of nose studs, head scarves and religion

Next month the Constitutional Court will hear the case in which a learner of Indian descent claimed that the school governing body unfairly discriminated against her on the basis of religion and culture because its rules prohibited her from wearing a nose stud.

The High Court had overruled a decision of the Equality Court which had completely misconstrued its power by finding that as long as the school had a policy excluding nose studs there was nothing to complain about.

The High Court had found that the school had indeed discriminated against the learner because its policy did not accommodate her cultural or religious practices.

This case is potentially fascinating because it deals with essentially the same kinds of issues that are thrown up by the head scarf debate.

Although the facts of this case may be tricky (it is not so clear that wearing a nose stud could be said to be part of the religious practices of the learner), it seems to deal with questions about the degree to which schools and other public institutions must accommodate non-majority religious (and cultural practices).

Given the jurisprudence of the CC on freedom of religion I would suspect that the school governing body will have an up hill battle convincing the Court that it should have the power to prohibit students from wearing nose studs if that is really pat of their religious and cultural practices.

As Justice Sachs has said on more than one occasion (and often at great length) the Constitution requires institutions to make a reasonable accommodation of different practices. We do not enforce a rigid separation between religion and the state, but we do celebrate difference and this means that if it is at all practicable, we should accommodate different practices.

It is only where allowing such practices would undermine the very reason for a specific rule and where the rule is of considerable importance that such an accommodation would not be required.

In this case the governing body will argue that student discipline is at stake but I will be surprised if a majority of CC judges endorses the importance of this rigid kind of discipline. They might well say there is no evidence that discipline would suffer if learners whose religious or cultural beliefs require wearing of a nose stud are allowed to do so.

What is happening here is, of course, that the cultural values of the (white?) majority is enshrined in the schools disciplinary code but presented as universal and a-cultural rules to enforce discipline. In that sense such rules perpetuate the marginalisation and “othering” of minority groups under the guise of neutral rules imposed to discipline learners.

Albie Sachs, Yvonne Mokgoro and Kate O’Regan would not stand for it, I think. Given the long line of precedent they will probably be able to convince a majority of justices not to stand for it either. In any case, a fascinating hearing is in the offing.