Parents appeal decision that favors Learning Unlimited school

POSTED: 11/4/13 2:39 AM

Ruling ignores cultural and religious aspects of moustache-dispute

St. Maarten / By Hilbert Haar – Preparatory school Learning Unlimited is free to set the rules for its students and it does not have to bend to the wish of parents to make exceptions. The Court in First Instance ruled Friday in favor of the school and against the parents of 13-year-old Nathan Snow who objected on cultural and religious grounds to the school’s decision that the boy had to shave his downy moustache.

Nathan’s father Jelmer, a civil law attorney at Bergman Zwanikken Snow Essed, said that the court ruling is unsatisfactory and disrespectful because it does not address the cultural aspects of the case at all. Snow will appeal the decision. He contests in particular the court’s opinion that basic constitutional rights do not have “horizontal effect” – that is to say that they do not affect the relationship between private parties like a school and a student.

“This judge clearly does not understand the effect of basic rights and he lives with his head apparently still in the sixteenth century. It is clear that the court is completely wrong with its approach about basic rights and therefore we will appeal,” Snow stated in a reaction to the ruling.

“It is revolting that the court did not even have the decency to devote a consideration to the argument of the Hindu religion that played an important role in this case. The ruling also did not address the case of the Rasta boy in Saba which is in my opinion an identical case.”

In the Hindu-religion, boys go through a Thread Ceremony of Upanayana. “The significance of this ceremony is that the child enters a new phase – from child to manhood – and thereby becomes a full-fledged member of the religious community. After this ceremony, Nathan is allowed to shave. Nathan’s mother has promised her late father that it would happen this way. In this sense, the measure affects Nathan more than other students at Learning Unlimited,” Attorney Christian De Jong who represented the Snows said at the trial.

At the court hearing on October 18, Nathan’s mother, Anju Snow-Baharani made an emotional appeal that explained why it matters so much to the family that the boy does not shave before his sixteenth birthday. “This is about my principles and my core values,” she said. “What is wrong with a well-groomed child?”

The court ruling however did not address the cultural and religious aspect of the case, as Mr. Snow indicated. Judge Koen Luijks ruled that basic rights aim to offer citizens protection against actions of the state. “These are liberty rights citizens can call on against the state. Based on this conclusion Snow’s call on these basic rights comes across as peculiar, because the case is not characterized by impermissible actions of the state but by a call by Learning Unlimited on abiding by the study-agreement with Snow that does not allow Nathan to have a little moustache.”

The court further ruled that there is hardly any jurisprudence about the application of the horizontal effect of basic rights to the relationship between individual citizens.

Snow’s attorney Christian de Jong had called on the right to equal treatment, the right to freedom of expression, privacy and personal integrity to fight the school’s decision. The court rejected this argument.

The court furthermore ruled that the school’s ban on having a moustache for a 13-year old boy is meaningful. “The provisional opinion of the court is that upholding the contested rule from the study-agreement by Learning Unlimited does not violate the public order or good manners and it also does not violate the fairness or the social decency or due caution. The study-agreement is valid and binds parties.”

The court ruled that it is possible to dispute the standards Learning Unlimited wished to uphold, but that the school is also free “to propagate this vision to its students and to write study-agreements with parents or guardians that support this vision and these standards. Parents and guardians are free to accept or reject these restrictions.”

The court remarks in the ruling that, according to Leaning Unlimited, these standards are the reason the Snow family selected the school for their son Nathan. “The court emphasizes that Snow is free to choose another fitting school for Nathan and that this is also possible: there is a sufficient and fitting supply of education for Nathan Snow in St. Maarten.”

The court notes in its ruling that Snow is not entitled “to only partially live up to the rules of the study-agreement and to ignore the ones he finds displeasing. If the court would allow the requested exception to the rule, it would inevitably lead to a precedent and slowly but surely to a frustration of the vision and the standards Learning Unlimited propagates to its students. Allowing the little moustache will lead to other claims by students for exemptions from the applicable rules for clothing, behavior and other issues. The court considers this undesirable.”

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