A reader (and friend) recently asked me what rights someone has in New Zealand when they want to challenge a school’s decision about what to do about a student’s behaviour. In particular, she wanted to know about the processes and her options. This is a big topic, and a relatively new one to me. I’m going to do my best to tackle it, but please if you want to know your rights when you find yourself in trouble you must talk to a lawyer or the Ministry of Education to clarify your options. What follows is my attempt to make sense of the system, and treat it therefore as a mere introduction to the system and as my effort to put it into layman terms. I will provide a range of useful links at the end of the post, please do use them if you want to refine or further your understanding.
The particular interest I have in writing this is concern for children with special needs, so that was my focus as I trawled through all the information, and at times in this post I will comment on where the fact that a child has special needs may be particularly relevant to proceedings.
I will begin by explaining the difference between four different categories of disciplinary responses to a student’s actions: Stand-down, suspension, exclusion, and expulsion.
Stand-downs are when a student is removed from the school for a period of days that may not exceed five days a term or ten days a year. A suspension is when the child is removed from school awaiting the outcome of a suspension meeting. That meeting can have a range of outcomes, but must be held within seven days of the suspension. Exclusion is removing the child from the school who is under the age of 16, the child must be enrolled in another school. Expulsion is for a child 16 or over, who may enrol elsewhere if they choose to continue their school education.
In deciding how to respond to a serious situation, the school must act fairly and flexibly. This means it must particularly take into account individual circumstances, including that individual’s abilities. Before deciding on a course of action, there has to be an investigation into the incident. If the evidence that arises from that investigation is inadequate or incorrect or in some other way flawed, there comes in here the potential to challenge the decision. It is the principal’s decision whether to stand-down or suspend a student. The behaviour has to fall into one of three categories for either a stand-down or suspension: Gross misconduct, continual disobedience, or behaviour risking serious harm.
To qualify as gross-misconduct it must be decided if these two parts have been shown: (1) Was the misconduct significantly blameworthy and remarkable, and (2) serious enough to justify removing them from the school, taking into account that it could damage their education. I think it is very important to note at this stage that gross misconduct must never be predetermined by school policies or by breaking a school rule; you can’t automatically label a particular action or behaviour as gross misconduct. The principal must also ask themself if the behaviour at issue sets a dangerous or harmful example to other students at the school.
“Continual disobedience” has to be a pattern of entrenched misbehaviour. (I’d add at this point that the term “misbehaviour” and “disobedience” appears to imply a certain level of intention and understanding that may not always be obviously in evidence for special needs children. Similarly the requirement for gross misconduct that the behaviour must be “blameworthy,” seems to me to necessarily draw-in strong consideration of a child’s special needs.) Again, the behaviour would also need to be considered a harmful and dangerous example to other children in the school.
The last of the three options – to do with the safety of that student and / or other students – is of a different nature than the first two categories since this is not about discipline per se, so much as safety itself. If the safety concern can be managed in any other way short of removing the child from the school, then those other measures must be used. Again, you can see how having appropriate measures in place to help and support special needs children would be relevant here too.
Even after all this, just because a school could justify and go ahead with a stand-down or suspension, doesn’t automatically mean it should do so. That is a separate consideration that must also be thought through. If there are special circumstances or a need for “mercy or compassion,” then a school should be trying to avoid these extreme measures and find other more appropriate solutions to the issue.
There are various circumstances in which a student may (and in some cases, must) still be allowed to attend school even though they have been stood-down; a stand-down does not mean there are no circumstances in which the child may continue to attend the school during the stand-down period. A stand-down can also be lifted before the time period has expired, similarly the time period can be shortened. If the time period of the stand-downs is exceeding the term and year limit, then the principal must use an alternative action or may choose to consider suspending the child instead.
Again, as for stand-downs, there are circumstances in which it is possible and circumstances where it is necessary to allow a student to attend school during the suspension period. The suspension meeting held by the board following the principal’s decision to suspend, is another area where things need to be done very carefully, reasonably and fairly, with an eye to natural justice. For example, if the board deliberates in private on the matter with the principal present, this may lead to a claim of bias; the role of the principal and board during a suspension meeting is not that of an ordinary board meeting. The board may choose to lift the suspension, lift it with conditions, extend it with conditions, or exclude / expel the student. The board must explain the reasons for its decision to the student’s parents.
If the student is excluded, the principal has an obligation to try to arrange for the child to attend another reasonably convenient school. The student’s original school may choose to refuse to re-enrol the child, unless the Ministry of Education lifts the exclusion, and another school may refuse to enrol the child, unless the Ministry directs it to do so. The same applies to an expelled student, except that it is the child’s decision whether to continue attending school.
So what about when you think the school got it wrong? The short answer appears to be that you don’t have many (or sometimes any) options for consequential review, and even the options that exist don’t have much in the way of teeth. You could seek a judicial review through the High Court, but that is very costly and the courts have limited powers to quash school decisions. Complaints can also be made to the Ombudsman and Education Review office, but apparently they – though less costly – are also time-consuming and considered ineffectual.
The Ombudsman can investigate complaints against a school’s decision. They can recommend solutions or remedies to an issue, and has powers to get information that you may have otherwise found difficult to obtain, but it cannot enforce its recommendations.
The Education Review Office may look into the complaint and refer the matter to be considered by the Ministry of Education; I can’t see any specific powers it has to make any orders or recommendations to the school itself from my own research into it. The Ministry of Education though does have the power to direct a school to re-enrol a student, after they have performed their own investigations.
The High Court can review whether the school met its legal obligations, in this situation as to whether it followed the correct procedures and acted in accordance with fairness, flexibility, reasonableness, and natural justice, as laid-out variously in legislation and in case-law. I’m having trouble finding specific information on the extent of its powers of review in this area, and its ability to order a school to act differently, but clearly it has the capacity to quash a decision made by the school around exclusion since that was exactly what it did in the most recent high-profile case about the behavior of a young man with special needs.
So there you have it: my single-night-of-research attempt to make sense of and draw together the various information you can find linked to below. If you find any errors or major over-sights in my post, please do let me know and I will rectify it as best I can. And I remind you once more: If you are in difficulty, please seek legal and professional advice, my post is neither, but I hope you find it useful nonetheless.
- Guidelines for Principals and Boards of Trustees on Stand-Downs, Suspensions, Exclusions and Expulsions, Ministry of Education (pdf).
- Out of School, Out of Mind, summary document from Youth Law (pdf).
- Complaints about a school made to Education Review Office, ERO website, includes link to chart of process.
- Re-enrollment of expelled student, information on Ministry of Education website.
- Complaints about State Sector Agencies, and the Powers of the Ombudsman and what the Ombudsman can achieve, Ombudsman website.
- New Zealand’s High Court, Ministry of Justice.
- “Judge quashes school’s decision to exclude student,” NZ Herald, Feb 24th 2014.