I've been following with interest, and some dismay, the coverage of St Pat's decision to prevent boys from taking other boys to the school ball:
- DomPost: "School denies pupil bringing boy to ball"
The School's position was invidious, mean-spirited, unjustified and - I think - unlawful.
Other commitments mean I haven't had the time to analyse the legal position (other than via some short exchanges on the Facebook). But it's fair to say the question is actually quite tricky for a number of reasons:
- Is the exclusion discriminatory (particularly in the light of the Court of Appeal's plainly erroneous, but binding, position in Quilter on same-sex couples and discrimination on the basis of sexual orientation)?
- Which discrimination norms cover the situation: the Bill of Rights or the Human Rights? What is the status of an integrated school under there instruments? To what extent does running a school ball a public function? Do any the HRA exceptions apply?
- If it's indirect discrimination under the HRA, or discrimination under s 19 of the Bill of Rights, is such discrimination justified?
- Does the rule have a legitimate objective (preventing incidents between current boys and old boys or boys from other schools)? Is the discriminatory rule the best (or a reasonable) way of addressing the problem?
- Could the rule be justified on other grounds, such as religious beliefs (esp in relation to an integrated school)?
- To what extent should a court or supervising body respect the judgement of a governing school board on such matters?
- Is the rule unlawful on common law grounds as the rigid application of a policy?
Anyway, even with these tricky hurdles to navigate, I think the position probably ends up being unlawful. You just have to trust me on that...
But, in lieu of detailed analysis, can I offer up a decision of the High Court of England and Wales from late this week: a case ruling that a school policy preventing boys from wearing cornrows was unlawful:
- Guardian: "School's refusal to let boy wear cornrow braids is ruled racial discrimination"
- SG v St Gregory's Catholic Science College  EWHC 1452 (Admin) (17 June 2010)
There's some analogy - I think - between the well-intentioned, but indirectly discriminatory, rules in both cases.
PS I probably should confess that it was a case involving the unlawful application of school rules (not involving me!) that in part led to me being at law school and developing my passion for law: M & R v Syms and the Board of Trustees of Palmerston North Boys High School  NZAR 705...