This paper sets out the case foundation upon which the law surrounding school exclusions and expulsions has evolved. As a bit of a yardstick it draws some parallels with employment law. It also looks at the ways our educational system deals with these issues to hopefully stir up debate whether we can do it better, and require an Appeal body.
The legal picture painted by the case law with exclusions and expulsions comes out of similar coloured tubes on the palette. They are predominately three cases concerning boys from three different high decile schools who either drank or smoked on school trips to Mount Ruapehu. The real picture however is that the majority of expulsions occur for gross misconduct, whilst in school in lower decile communities. In round figures 8 per thousand students are excluded or expelled in any one year.
Employment law on the other hand, has its case law built upon a much wider socio-economic foundation. What's more employment law is supported by state funded institutions to hear appeals on the facts. The Department of Labour's mediation service is readily available for work dismissals, as is the Employment Relations Authority or Employment Court. Its estimated around 13 -18 employees per thousand workers are dismissed in any one year.
Education has no such safe guards. A School Board of Trustees decision to exclude or expel a student can not be easily overturned. To do so involves costly judicial review in the High Court. An Ombudsman Office investigation, Human Rights Commission complaint, Community Law, Youth line or Parents Legal Information helpline is unlikely to get a student reinstated, or have the facts of their expulsion thoroughly reviewed. In special circumstances the Secretary of Education has the discretion to direct a school to accept back a student it has excluded or expelled if the student cannot be placed elsewhere.
Tomorrow's schools put in place the remarkable decentralised lay governance structure over state assets - School Boards of Trustees. There is no washy tokenism about a School Board's powers. Section 75 of the Education Act 1989 (hereinafter the "Act") rings out :
Boards to control management of schools:
Except to the extent that any enactment or the general law of New
Zealand provides otherwise, a school's board has complete discretion to control the management of the school as it thinks fit.
It is a given, the quality and ideological aspirations of Boards vary enormously. In addition, the norms and mores of the surrounding community will be reflected in a local Boards decision making. For example a Southland school excluding a student for defiance over Tana Umaga like dreadlocks, where the such a hairstyle is unlikely to cause ructions elsewhere in New Zealand.
Depending upon one's viewpoint, the capturing of local values and diversity in school boards is a strength as opposed to making governance more centralised. In a sense, this provincialism is not unlike Juries - to be judged by ones peers.
Underpinning our education system is of course section 3 of the Act.
Right to free primary and secondary education
.... every person who is not a foreign student is entitled to free enrolment and free education at any State school during the period beginning on the person's fifth birthday and ending on 1 January after the person's 19th birthday.
All the issues that follow standing down, suspending, excluding or expelling students is beholden to this overwhelming right to be educated.
Whilst obviously there is no parallel in our employment law, as one plainly can't compel business to keep staff they don't want - it is musing to reflect that the primary remedy for an unjustified dismissal is an employee's reinstatement back into their job.
The Act makes a distinction between exclusions and expulsions. The former relates to students under the age of 16, the latter to those 16 years or older. A 15-year-old therefore cannot be expelled. The essential difference is an excluded student must be found another school to go to, whereas an expelled student may end up not being placed in another school, unless directed by the Secretary of Education.
Section 13 of the Act states:
The purpose of the provisions of this Act concerning the standing-down,
suspension, exclusion, or expulsion of a student from a State school is
(a) provide a range of responses for cases of varying degrees of
(b) minimise the disruption to a student's attendance at school and
facilitate the return of the student to school when that is appropriate; and
(c) ensure that individual cases are dealt with in accordance with the
principles of natural justice.
These subsections have very practical outcomes. No doubt because the Act provides for the Secretary of Education to issue Rules under section 18 AA of the Act, and the underpinning staunch commitment of teachers and parents to make schools work.
In the case of subsection (a) above: not only are there four outcomes to fit the "seriousness of the crime"; stand out; suspension; exclusion or expulsion, but in addition Principals or Boards can attach 'reasonable' conditions to stand downs or suspensions, aimed to "facilitate the return of the student back to school ". This has a very loose parallel with the well-known "verbal warning, written warning, final warning " procedural mantra common in employment law.
In the case of subsection (b) above taut timelines are imposed on Principals and Boards to minimise disruption. The Principal must tell the parents, the Board, and advise the Ministry immediately of a suspension. The Ministry suspension pamphlet is to be given a parent or student as soon as practicable. Students and parents must be given a written report of the reason for suspension at least 48 hours before the Board meets. The Board must hold their review meeting within 7 school days in term time from the day the decision to suspend was made. If the Board fails to meet these stringent time constraints - that's it, the suspension lapses. Exclusion or expulsion cannot follow.
In passing, no such stringent time frames apply in employment dismissals other than the 90 days within which to raise a dismissal grievance
The case law that will follow centres around Section 14. Essentially, the meaning of the expression "gross misconduct" or "continual disobedience". This section reads:
(1) The principal of a State school may stand-down or suspend a student if
satisfied on reasonable grounds that---
(a) the student's gross misconduct or continual disobedience is a
harmful or dangerous example to other students the school; or
(b) because of the student's behaviour, it is likely that the student,
or other students at the school, will be seriously harmed if the student is not
stood-down or suspended.
The Ministry of Education produced its well-known Guidelines for Boards of Trustees and Principals in September 2009 on these matters.
Part 1: spells out legal options and duties;
Part 2: good practice.
They are indispensable for any Board or Principal sadly obliged to consider expelling or excluding a student. However, such guidelines are subject to the danger it's templates, flow diagrams and model examples become too formulaic. Indeed, the Courts ruled against one school in part because of its Spartan tick the box mentality to completing the Guidelines templates. Principals and Boards run the danger of getting so tied up with a squeaky clean procedure the substance of the students gross misconduct gets lost sight of.
There is the obligation on a school Principal (and ultimately the Secretary of Education) to place those excluded in another school. Section 15 provides:
15 Board's powers when suspended student younger than 16:
(5) If the board of a State school excludes the student under subsection
(1)(c), the principal must try to arrange for the student to
attend another school (which school is a suitable school that the
student can reasonably conveniently attend).
(6) If the principal is unable, by the tenth school day after the day of the
board's decision to exclude a student, to arrange for the student
to attend another school, the principal must tell the Secretary what
steps the principal took in trying to do so.
This brings into play the dynamics of one school having to pick up another's unwanted student. A Board, or more particularly teachers, may delight in being rid of a student with gang drug connections, only to find later the favour has been returned and they are directed to accept another schools ringleader in school ground violence. This reality may act as a brake to expelling or excluding.
The Secretary of Educations powers with a student 16 years or older to place in another school is provided for in section 17:
(3) The Secretary may, in the case of a student who has turned 16, direct
the board of another State school (that is not an integrated
school) to enrol a student at the school if---
(a) the student has been expelled under section 17; and
(b) the Secretary has made all reasonable attempts to consult the
student, the student's parents, the board, and any other person
or organisation that, in the opinion of the Secretary, may be
interested in, or able to advise on or help with, the student's
education or welfare.
YouthLaw argue there are no sanctions on Principals who do not timely find other schooling for excluded or expelled students. The job of placing unwanted students may be delegated to a school counsellor for instance, who has no end of trouble finding another school. Students can be unplaced for months. Youth Law's Official Information Act the request concluded in 2005 that the average time it took for a student to be re-enrolled was eight weeks. This impacts youth offending and crime rates - ask the police or Family Court. Delay of course exacerbates an unwanted student reintegrating into any schooling whatsoever.
The colloquial "Kiwi suspension" is where a Principal may suggest to an unwanted student that he or she will be better just leaving. This is analogous constructive dismissal in employment law. That is simply a boss engineers work environment pressures so a worker has to leave. A classic employment case concerned a meter reader who kept being bitten by dogs. The power company did nothing to help, after being alerted. The worker won compensation.
Section 77 of the Act also has relevance as it provides:
Guidance and counselling
The principal of a State school shall take all reasonable steps to
(a) students get good guidance and counselling; and
(b) a student's parents are told of matters that, in the principal's
(i) are preventing or slowing the student's progress through the
(ii) are harming the student's relationships with teachers or
A caviller attitude to this mandatory obligation also contributed to a Court overturning a Board's decision to exclude.
In passing, employment law has a very clear implied duty to let staff know where they stand. On the job coaching, and the "warnings mantra" mentioned previously illustrate this obligation. However, there is no obligation on an employer to provide formal counselling. A small roading contractor or busy restaurateur could hardly be expected to send a useless driver or waiter off to a counsellor before sending them down the road!
An employer must tell the prospective employee that they have a right to seek advice on their employment agreement. Furthermore, larger employers in particular contribute to staff counselling through confidential Employee Assistance Programs.
The information from the Departments Counts website www.educationcounts.govt.statistics. Is attached as Appendix One.
It shows Maori are three times more likely to be excluded than Europeans. Pasifka twice more likely to be expelled than Maori and six more times more likely than Europeans. Students from lower decile schools are four times more likely to be subject to exclusion than those from high decile ones. Interestingly in high decile schools expulsions are more commonplace amongst Europeans, Maybe, as fewer other ethnic groups are likely enrolled, standards less flexible amongst other reasons. Expulsions and exclusions for drugs are decreasing whilst those for assault are on the up.
YouthLaw found that 75% of schools did not suspend a single student. 2% of all schools were responsible for 35% of all suspensions and 1.5% of all schools responsible for 24% of all stand downs. It is noteworthy this was more pronounced in a lower decile communities.
THE CASE LAW
M and R v S and Board Of Trustees Palmerston North Boys High School 1990. High Court Palmerston North. McGechan J.
This is a judicial review brought on behalf the boys M aged 16 and R aged 14. They challenged the steps taken by the Rector in suspending them both, and later by the Board expelling M. A traditional school, and parents were advised of the rules in relation to drinking and drug use by circular.
The boys were in the fifth and sixth form. M was a member of the schools ski team selected for the North Island Secondary Schools Ski Competition. R was a reserve. They stayed at a ski lodge on the mountain. The boys were found drinking beer which had come from a family locker in the Lodge off a Feilding High School boy. He was also staying at the Lodge. There was no evidence they got drunk. However the teacher in charge off the Palmerston North ski team suspected the Feilding boys had been drinking. The boys from both schools went to a disco in Ohakune that night at one of the Feilding boys became ill "apparently due to a mixture of alcohol and prescription medicine". The Feilding teacher told the Palmerston North teacher of this. The Feilding boy told his teacher he had got the beer from the locker and M and R were with them when they drank it.
The Palmerston teacher informed his Rector who ordered the team back to Palmerston North immediately.
The Rector got a verbal report from the teacher which established that there had been modest drinking. "M" said that he knew about school policy and Rector met with his mother and stepfather. After considerable discussion the Rector suspended "M" for an unspecified period. The Rector then interviewed "R" whose father was a solicitor. The boy admitted drinking a small quantity and was likewise suspended. The Rector told the parents he would give no consideration to the quantity consumed; any consumption triggered suspension.
R's fathers' law partner wrote to the Rector. He argued there could be no basis on which to form an opinion that grounds for suspension existed. He was told the Board would meet to consider this. The Board seemingly conducted a fair hearing. The parents were present , one supported by a QC's submissions.
The Board considered submissions; notes were taken by their legal adviser who later destroyed the minutes. M was expelled on the grounds of gross misconduct which is harmful and a dangerous example to other students. R was suspended indefinitely with the Board to review the position if another school would take him. The boys were purportedly of good character.
In the High Court the boys QC argued there was no evidence to form a lawful opinion of the "gross misconduct that could set a harmful and dangerous example to other students". It was also pleaded there was too much legality about the Board's decision making and the Rector had applied a predetermined policy. They sought to have the decisions quashed.
The Rectors evidence was unequivocal that alcohol consumed would lead to automatic suspension. He was not going to equivocate about quantities. A Rector should not consider the character or reputation of rule breakers. The Judge concluded indeed it was open for the Rector to form an opinion that "gross misconduct" had occurred. The judge however found, notwithstanding he had "sympathy with the Rector's desire for preordained absolutes simplifying and expediting discipline" the law required of the Rector to assess all the circumstances of the case.
Section 14 talks of "may suspend" and McGechan J found this discretion "is not to be ignored, as if non-existent. Nor is it to be fettered by a Principal through self imposed rules permitting no exceptions." The Judge went on to draw the analogy with section 19 of the Criminal Justice Act 1967 "that empowers discharge without conviction even within the circumstances of the criminal law itself."
The Rector had not addressed this statutory discretion and the suspensions therefore invalid.
With respect to the Boards decision to uphold the Rectors decision to suspend. McGechan J found the Board proceeded in good faith reviewing the Rectors decisions but fell into the same trap "it was overwhelmed by a view that any consumption of alcohol dictated removal". The Judge further found that the Board did not exercise its mind on the ultimate discretion whether or not to uplift suspension or procure removal.
Justice McGechan added a postscript to his decision. It is still useful guidance with respect to alcohol behaviours. This is notwithstanding later law changes removed suspensions for an unspecified period- as was then the case in 1990. This is set out hereunder:
It is important there be no misunderstandings in the educational world, This is not a decision that a school cannot pass rules prohibiting alcohol, or a decision that consumption of alcohol by a student cannot be gross misconduct. It is not a decision that a school principal and Board cannot find gross misconduct and harmful or dangerous example, and proceed to suspend for an unspecified period, or extend suspension or expel, if a student is involved with alcohol. Indeed, it is not a decision that the conclusion reached by the principal and Board in this case was "wrong" in an absolute sense; but merely that those involved went about making the decision in some respects in the wrong way. Rather, this decision holds
(i) that "gross" misconduct involves misconduct striking and reprehensible to a high degree which warrants removal of the student from the school despite damage which would result to the student. Whether conduct attains that level will depend on all the circumstances of a particular case.
(ii) that schools may have a general policy towards alcohol and drugs, but cases of alcohol and drug use must not be resolved automatically in accordance with such policy. Principals and Boards instead must carefully consider all the circumstances of each individual case before deciding whether or not individual alcohol related conduct amounts to gross misconduct. It may be troublesome, but it must be done.
(iii) that even where gross misconduct and harmful or dangerous example have been found to exist, principals must not suspend automatically Principals must pause and consider whether, in all the circumstances of the particular case, suspension for an unspecified period is warranted as a matter of discretion. Boards must consider whether, in all the circumstances of the particular case, uplifting of suspension (conditionally or
otherwise) or extended suspension or expulsion is warranted as a matter of discretion.
These statutory approaches are designed for the protection of children. They are not to be sacrificed to administrative or disciplinary efficiency, or some supposed need for absolute certainty. Results must not be fixed : they must instead be fair.
In employment law summary dismissal for gross misconduct is well tested. Employment agreements and /or house rules will spell out examples of what constitutes gross misconduct ( unauthorised possession of company property, drugs etc). This is not unlike what is common place in school charters, as was the case above. Additionally the rules for the school trip were spelt to both the M and R and their parents.
However, in education gross misconduct is further expanded in that it has to meet the test of the "reprehensible to a high degree" plus be a harmful or dangerous example. It is significantly higher test and hurdle to jump than commonly understood behaviours qualifying for summary dismissal in employment law.
D v M and The Board of Trustees of Auckland Grammar School
1998 High Court, Auckland. Smellie J
A judicial review of the suspension and later expulsion of S a 7th former. Also concerned were allegations of breach of the New Zealand Bill of Rights and a claim for damages. The student had been caught smoking, whilst on a field trip to the schools lodge in Ohakune.
The Ombudsman investigated and recommended that the school reconsider. It declined.
The schools rules outlined they would be strictly enforced, necessary for the schools unparalleled reputation in Auckland. In addition for the trip away and behaviour in the Lodge included the expression "cigarettes and matches, alcohol and drugs are absolutely forbidden.
A white card system recorded a student's behaviour record. D had been warned once in the 3rd form, once in the 5th form and twice in the 6th form about smoking. The was a further 6th form incident that involved another student accusing D of having cannabis. The master who gave the warning for the alleged cannabis incident (which was vigorously denied) did not tell D as he had turned 16, he could be suspended indefinitely or expelled. Nor had D, on any previous occasion been directed towards an independent counselling and guidance as required under Section 77..
D knew of the no smoking rule. He accepted a cigarette from a fellow student and went to a creek at 9:30 pm 400 meters from the Lodge. There he smoked it. He and his companion's absence was noted. He was accosted when he returned to the Lodge and admitted smoking. He was also accused of smoking cannabis but denied this. It was accepted it was likely his companion gave him the cigarette. There was considerable concern of fire risk. The Headmaster was informed.
At the first interview that followed at school, D's mother was present. The master told D his future at Auckland Grammar was going "to be short lived". A further interview took place with D and his parents, the master conducting it allegedly delivered up a fait accompli. D was not wanted back at school. D was encouraged to voluntarily withdraw from school and enrol at Onehunga College. The smoking incident was further coloured as the other boy involved had been expelled. A ESR report had showed remnant of cannabis in D's smoking companions tobacco pouch.
Matters became tense between D's father and the Headmaster. The Headmaster's report to the Board contained that D may have smoked marijuana.
At the Board hearing D was represented by his parents and a solicitor, as was the Headmaster. The Board had a practising solicitor member. The Board accepted D did not take tobacco to the Lodge nor was their sufficient evidence that he smoked marijuana. The Board made a full report why they concluded D be expelled, mainly because of his continued disobedience. This turned on the 4 warnings he had in the white card system.
Smelly J carefully considered the cross-examination, and found notwithstanding the careful report of the Board discipline committee, it failed in giving no consideration to the middle course. That was to lift the suspension subject to conditions. D was entitled to this consideration. Further the Judge accorded weight to the "Jenks incident". Ash was found on the windowsill at the Lodge a fortnight earlier and no serious action was taken against those students involved.
Smelly J did not overturn the Headmaster decision that smoking was gross misconduct. He did however rule the Headmaster was wrong in pressurising D to withdrawn voluntarily or be suspended for an unspecified period of time for gross misconduct as a harmful or dangerous example. The white cards did not show continuous disobedience in the Judges view. By moving directly to this conclusion was an improper exercise of his discretion. There was the additional problem the Headmaster had based his decision on incorrect facts.
Smelly J then overturned the Board's decision. He found the failure to give the student a chance to address the charge of continued disobedience amounted to a breach of natural justice. Further, he concluded the Board needed to address the option of a suspension with conditions. It had not done so.
The pleadings under the Human Rights Act and requests for damages got nowhere.
Smelly J's decision was in 1998 three years after D had been expelled. It must have hurt as he was now 20 with a "significant blot on his escutcheon". His decision quashed the suspension and expulsion and the school was ordered to contribute $6,000 to D's costs.
This case has parallels in employment law. If the first place the concept of warnings, and secondly, previously condoning like behaviour.
The five warnings in four years at school was not held to be "continuous disobedience". In employment warnings generally have a time limit of six months or a year. Employment case law warnings cannot stand indefinitely. Here again, the test in education appears to be higher than that in employment because of statutory expression "continuous disobedience".
The " Jenks incident" seems on all fours with employment law principles. Previous evidence of condoning behaviour, without an obvious change in policy communicated to a workforce has led employment dismissals being overturned. This is the problem new bosses can face when trying to stamp their mark on workers.
Stephen W Bovaird and The Board of Trustees of Linfield College and J Suiing by his Litigation Guardian. Court of Appeal 2008 O'Regan J
This was an appeal from a High court decision. It concerned two issues. Firstly ;the extent of natural justice requirements a teacher or Principal need undertake when investigating misconduct which could lead to suspension. Secondly; whether a Principal must consult the parents before making the decision to suspend.
J a16-year-old fourth-year student was found to be in possession of paraphernalia of smoking marijuana on 23 March 2007. He was suspended for gross misconduct. On 27 March along with his mother he appeared before the Board. He had a clean record. The previous summer holidays three of his friends had died. He had also experienced bullying. The Board reinstated the student conditional upon him complying with the school rules, accepting random drug testing, and completing a drug rehabilitation course.
In April he attended a three day geography camp at Mt Ruapehu (Tongario). He was part of a group of students who misbehaved and caused disruption. J gave a written account of what happened. J admitted to smoking after 45 minutes quizzing in the Principals office. He said he did this to stop the questioning. The next day they made an inappropriate comment about anal sex. Again he visited the Principals office. They quizzed J about his written statement before saying that it was inaccurate. He did admit to smoking in Taupo. A two-week break followed. The Principal then called J's mother saying he would have to appear before the Board and he wanted to meet her. J and his mother met the Principal. She expressed the view J had done nothing wrong. The following day J's mother received a letter stating J was suspended. J's and mother of another suspended student meet with teachers and complained about the school camp misbehaviour.
The Principal prepared a report for the Board suspending J for "continual disobedience". The Board met with J's mother and grandmother. Other family members also spoke. They challenged the Board materials, only received 48 hours earlier. They pleaded J had not been involved in the more serious behaviour that occurred at the school camp. The Board then met with the parents of the other students suspended. They were all reinstated conditionally. The Board however expelled J as his behaviour had deteriorated since his first suspension meeting.
J's mother requested a copy of the Board's reasons. The Board minutes followed a standard template. Under that heading 'consider all options available and record why this option was chosen. Also note why other options were not exercised the Board recorded "no belief that he will meet the conditions of reinstatement -- expel". That was it.
The provisions in the Act for dealing with standing down, suspension, exclusion or expulsion were amended in 1998. The purposes spelt out in section 13 (quoted earlier) is that is a range of responses to match the seriousness of the issue: students are to be kept in school were possible, and natural justice principles must be applied. In the 1990s parents were complaining students were being suspended or expelled too frequently. This statutory amendment was the outcome of that criticism.
The Court of Appeal found that Keane J (the High Court Judge being appealed against) although correct in quashing the suspensions still erred in law by requiring of a teacher or Principal suspending a student to consult the parent prior to making the decision. The Departments guidelines on this had been amended to include the High Courts consultation requirement with a parent before suspending.
The Court of Appeal found there was no requirement for a Principal to consult with a student's parents prior to deciding to either stand down or suspend. It simply would be impracticable in many circumstances.
In J's particular case the Court of Appeal found the Principals decision to suspend a second time got confused with the first suspension. The door was open therefore that the reasons for the Board expelling J were different from those he was suspended for. It upheld the Keane J in quashing those decisions.
The Court of Appeal concluded "our concerns should not be interpreted as an indication that Court style processes be required in every Board hearing to consider what should be done about a student who has been suspended. The requirement is to conduct a fair process allowing the student and/or his or her parent to put the students side of the story to the Board. In most cases that will be able to be done without undue formality"
Unlike employment law, this decision puts a lesser burden on procedural fairness on Principals or teachers suspending or standing down students. Intriguingly, with work suspensions reasons for a suspension (a harassment claim for instance) are to be put to the employee before suspension. An employee would be normally be entitled to bring a support person if so wished. To not allow this, can be fatal to a justifiable work suspension.
This not required with school suspensions. The that a Board is to review the decision with seven school days is a safeguard.
In passing, J stayed in school all the time these legal machinations' were in progress. I gather the school was none the lesser for this.
It is hard to escape thinking when reading the abovementioned cases, that somewhere along the line New Zealand's obligations under the United Nations Charter for the Rights of Children to " act in the best interests of the child" has got somewhat subsumed by the very real needs of the school. This case law and the statutory amendments in the last decade or so have swung the pendulum back towards the child's interests being paramount.
In addition, one may well get a sense of unease that these somewhat "precious" aforementioned cases have framed the law that applies to the mass of cases with such different facts. That is, exclusion and expulsions in lower decile communities for behaviour at school. A "significant blot on his escutcheon" is unlikely to resonate with a south Auckland kid excluded, bored and roaming the streets as other schools won't to enrol him.
We accept as New Zealanders that our school's be governed by locals. Centralisation of our education concerns teachers career paths, pay, standards, curriculum, bricks, mortar and the like. The establishment of an appeal authority to oversee Boards decisions on student behaviour adds to centralism. For my bob's worth this is undesirable. Oversight bodies like that in employment are costly, and make day to day behaviours more legalistic. Inevitably, something else in the education budget would have to give.
The evidence suggests a fraught hiatus when a Principal is unable to find another school for an unwanted student within the ten-day statutory requirement. Many gifted teachers pick up these problem students in activity centres and Correspondence School. It is here, I suggest efforts should be directed. No excluded student should be in no man's land for a term whilst alternative schooling is arranged. The Department needs maybe to be more active in exercising its existing statutory discretions to direct.
Similarly, the efforts of the Department of Education, School Boards of Trustees and YouthLaw and parent helplines could be bolstered perhaps in training Principals, teachers and Board members to better run fair hearings and make quality decisions. A model worth exploring is the training accreditation local body elected members require so to sit on Resource Management hearings.
Picots memorable observation in 1988 "good people, bad systems" still resonates. The systems I proffer, are now not bad, but need constant improvement. A review authority not unlike in our employment institutions I submit is unwarranted.