Outrageous and Rebellious

Outrageous and Rebellious: legal issues affecting students' dress and appearance * By: Clair Trainor Introduction No one will deny the symbolic significance of dress. From the spiked hair and safety pins of the 70’s punks to the ultra-loose clothing of the 90’s skaties, dress communicates. Over the last year YouthLaw Tino Rangatiratanga Taitamariki has dealt with about sixty enquiries from different parts of the country about school dress and appearance rules. Accordingly it is clear this is an issue of some importance to students, and thus their families. Perhaps this is not surprising when we consider the various limits imposed on young people’s independence by family and the State; dress can take on symbolic significance as an area of personal expression. This paper will examine the balance between a school's authority to make rules relating to students' dress and appearance and students' and their families' entitlement to manage this personal appearance. The focus will be on state and integrated schools, with some discussion of private (‘independent’) schools. The extent of school boards’ authority to make rules under section 72 of the Education Act 1989 will be considered as will the various statutory and general law provisions impacting on this. The case of [1] Edwards v Onehunga High School Board and Another will be examined and the thesis put forward that this case would be narrowly applied today in light of the development of human rights based law since the 1970's. Factors such as the greater autonomy of school boards and increased community involvement under the "Tomorrow's Schools" framework will be raised as will the extent of the requirement to consult. A comparison will be made with the United States case law in this area. United States jurisprudence provides sufficient case law to identify patterns relating to the manner in which matters have been approached in that country. Of course this has no power to bind or even persuade our New Zealand courts. Nevertheless there are some instructive parallels. Reference will also be made to some Australian legislative provisions. Do schools have unlimited power to make rules? Legislation delegates the authority to make rules to bodies designated by a particular statute. The well-known example is the power given to local authorities to make bylaws under the Local Government Act 1974. In the same way the Education Act 1989 delegates authority to schools to make rules. [2] The rule The rule making authority of a state school derives from section 72 of the Education Act. [3] making authority of an integrated school comes from the same source and that of a private school from the contract between the parent and student (depending on the student's age and maturity) and the school. Section 72 states: 72. Bylaws - Subject to any enactment, the general law of New Zealand, and the school's charter, a school's Board may make for the school any bylaws the Board thinks necessary or desirable for the control and management of the school. The power is cast in broad terms, namely “any bylaws the Board thinks necessary”. This is consistent with the "Tomorrow's Schools" education philosophy of school boards as self-governing entities. However, there are clear limits imposed: the rules need to be subject to New Zealand law and the school’s charter. If they are not, they will be capable of legal challenge. The Court of Appeal [4] in Brader v Ministry of Transport stated that a broad power may make the authority subject to greater scrutiny by the courts. Accordingly it is helpful for school boards to be aware of the factors to take into account when formulating school rules. These factors will be outlined below. The relevance of the Bylaws Act 1910 is also a factor to be considered. Section 2 of the Bylaws Act 1910 defines a “local authority” in terms which would include school boards of trustees. Under section 12 of the Act, any person may apply to the High Court for an order quashing the bylaw, or any part of it, by reason of its invalidity. Bylaws will not be invalid solely because the laws of New Zealand already deal with the subject [5] matter of the particular bylaw, unless the bylaw is contrary to those laws or the power afforded by [6] the bylaws is so great as to be unreasonable. There is considerable case law regarding the issue of delegated legislation. For instance, the courts [7] will have reference to the reasonableness of the rule , to its certainty, to its conformity with the laws of New Zealand and to how it has been made. Under this head the issue of sub-delegation would be considered. Can the Board’s power under section 72 be delegated? Traditionally the courts have held that that delegated authority cannot be sub-delegated. However there have been a number of exceptions to this. Phillip Joseph says that “…the exceptions under the [8] statute and at common law are of such broad application that they threaten to engulf the rule.” The principal's role as “chief executive” is set out in section 76 of the Education Act 1989. The principal under this section has broad powers to manage the school’s day to day administration “as the principal thinks fit”. Of course this is subject to “any enactment [and] the general law of New Zealand.” The courts may find that the board’s powers under section 72 cannot be delegated to one individual who has responsibility for the day to day running of the school. Of course, the board will take ultimate responsibility for the rules by which the school operates; this suggests it would be prudent for it to be conversant with its rules and to have considered the reasons for them. Further, the issue of consultation is an important one for school communities, as discussed below. There may not be sufficient opportunity to consult where one person, rather than the elected group, promulgates rules. Having said this, it is clear that any school rule must be decided through the procedures established by the board. Where a board has not delegated rule-making authority, the principal will be unable to add or amend a school rule virtually overnight, in response to a particular style of dress, for example. Certainty Students must know what the rules are and their parameters. This issue was alluded to in Edwards [9] where evidence was put before the Court that the student concerned had been part of an assembly where a dress rule was publicised, and was later spoken to individually. The rule was incorporated in a resolution passed by the board shortly after Edwards enrolled. The argument was not advanced that the student did not know of the rule nor that it was unspecific. The rule read: Haircuts: Resolved that the board confirm (sic) the existing rule of the school regarding the length of hair for boys: 1. Not over the eyebrows. 2. Not below the bottom of the ears. 3. Not on the collar. Apparently around a hundred boys at the school were wearing their hair longer than this prescription. By comparison, a rule such as “long dreadlocks won’t be tolerated” risks being challenged on the basis of uncertainty. It may also attract a Human Rights Act complaint of discrimination on the basis of ethnicity. Students’ Health and Safety At Common Law and under the National Education Guidelines as well as section 15 of the Health and Safety in Employment Act 1992, school boards have duties to provide for the health and safety [10] of students. In administering these duties boards would find it necessary to impose rules restricting or specifying certain forms of dress. Examples would include rules that protective eyewear is worn and long hair secured during classes which used machinery such as lathes. It would also be reasonable to require jewellery to be removed whilst contact sport was played. The School Charter The school charter is defined in section 61 of the Education Act as "a written charter of aims, purposes and objectives". The charter is essentially the contract between the school, its community and the Minister of Education, as agent for the government of the day. Charters are in place in both state and integrated schools as well as kura kaupapa Maori and designated character schools. In the charter the board of trustees undertakes to adhere to all relevant acts of Parliament, National Education Guidelines, the integration agreement (where applicable), industrial awards and agreements, and regulations as they relate to the school. Schools in their charters are required to commit to equitable outcomes for students regardless of ability or disability and gender, religious, ethnic, cultural, social, family and class backgrounds. Students can also expect an education which respects their dignity. Under section 64(3), no person other than the Secretary of Education has the power to take proceedings to enforce a school charter. Accordingly if a student and his or her parents believed a rule were outside the scope of the charter, they could draw this to the attention of the Ministry of Education. An example of a possible breach of a school charter would be the practice of giving male students a razor at a school which operates a clean-shaven policy, and requiring them to go and shave straight away. This may breach the objective of the charter to respect the dignity of all students. A school could also be challenged through its charter if it were to adopt a uniform policy which had the effect of presenting barriers to children from working class backgrounds; hence the importance of providing assistance to access affordable uniforms via the school. Consultation with the school community is an important aspect of the charter partnership. It is fundamental that the school should consult in good faith and ensure it includes the whole school community. This includes the students, Maori families under the Treaty of Waitangi partnership, and the various ethnic groups that make up the school community. Consultation is an important area and will be discussed below. The New Zealand Bill of Rights Act 1990 Status The New Zealand Bill of Rights Act 1990 (“the Bill of Rights”) does not enjoy precedence over other legislation. This has not prevented it becoming an increasingly important statement of rights. The [11] primary example of this is to be found in Simpson v Attorney-General [Baigent’s Case] and [12] Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General in which the Court of Appeal decided there was an implied remedy for breach of sections 21 and 22 of the Act (unreasonable search and seizure; liberty of the person). Indeed, the Court considered failure to do [13] so would result in a denial of effective relief. Application There is no doubt in my mind that the Bill of Rights applies to state and integrated schools on the basis of section 3 of the Act. Section 3 states: 3. Application - This Bill of Rights applies only to acts done -(a)By the legislative, executive or judicial branches of the government of New Zealand; or (b)By any person or body in the performance of any public function, power or duty conferred or imposed on that person or body by or pursuant to law. Attendance at school is a requirement imposed by Parliament and provided for by the government of the day. Whether schools would be caught by sub-sections (a) or (b) may be debated but they would [14] certainly fall within one of the two. There is also support for my view that the Bill of Rights applies to private schools. That it does not extend to the private boarding establishments attached to [15] state schools was decided in Mcguinn v Palmerston North Boys High School. Further, the provision of education is a duty and function conferred pursuant to law in the case of both state and integrated schools, as well as Kura Kaupapa Maori and designated character schools. When a private school is registered under section 35A of the Education Act 1989, I consider it to be performing a public duty and function. The argument in support of private schools receiving public money is based on the view that they fulfil a public function by allowing additional choice for students and their families in the education system. Accordingly the Bill of Rights Act would apply equally to private schools. Limitations [16] The Bill of Rights does not provide for unfettered enjoyment of the rights contained therein . The rights contained in the Act may be limited where this is demonstrated to be justified. Section 5 states: 5. Justified limitations -- Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The governing body of a school will wish to consider this section. Any limits it imposes on students will need to be: (a) reasonable; and (b) prescribed by law; and (c) justified. Finally, that justification must be able to be demonstrated by the person or body seeking to impose the limits. For a school rule to be reasonable it must not be unduly restrictive on those required to comply. The wording of the statute contemplates the court taking an objective approach to the issue of reasonableness. However, given the current emphasis on the Board’s autonomy in the “Tomorrow’s Schools” model, it would not be too surprising if the court referred to evidence from the local [17] community to assist it to determine what was reasonable in the particular context before it. [18] the High Court considered the right to freedom of In Zdrahal & Anor v Wellington City Council, expression (swastikas on a house) against the limits on this right imposed under the Resource Management Act in response to neighbours’ complaints. The Court found the restriction on freedom of speech to be reasonable and capable of justification. In this regard the neighbours’ evidence that the material offended them was an important consideration. For a rule to be prescribed by law, it must be made with legal authority. Presumably this means it will be promulgated in compliance with the school board’s rule-making procedure and that procedure must be proper. The school rule must be justified. That is, there should be a sufficient purpose for it and it should be likely to meet its intended objective. In the Unites States jurisdiction, the courts have inquired [19] rigorously into this question. While the New Zealand courts have not been required to consider this specific point, there is no reason to suppose that a less complete inquiry would be made here. Finally the justification for the rule must be able to be demonstrated. This prevents unsubstantiated grounds being used to justify a rule. This is perhaps the most problematic area, as it brings into play social norms and evidence thereof. Referring again to United States case law, the courts in some [20] states have been slow to accept arguments that, for example, longer hair results in lower grades, or that long haired males will undermine the educational system with potentially disastrous results. [21] In New Zealand, dress codes are sometimes justified on the basis that they uphold “standards”. This can present a difficulty to school boards, as the question frequently arises as to “whose or what [22] standards?” . Sections 4 and 6 provide the courts with guidance on the management of possible inconsistencies between enactments and the Bill of Rights. As the authority to make rules under section 72 of the Education Act is specified to be subject to any enactment (which includes the Bill of Rights), the courts’ balancing act in relation to issues of inconsistency would be reduced to a consideration of section 5, which we have discussed. Sections 13 and 14 Section 13 states: Freedom of thought, conscience, and religion—Everyone has the right to 13. freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference. This section is particularly important to dress and appearance. Many schools are well aware of this because of the increasing ethnic diversity in this country. The symbolic significance of dress is obvious in relation to religious beliefs. Other sections to be considered are sections 15 (“Manifestation of religion and belief”); section 19 (“Freedom from discrimination”) and section 20 (Rights of minorities”). Section 20 protects the rights of minorities to enjoy their culture and practise their religion or language. A failure to make provision [23] for these matters may attract a successful challenge to the school rules regulating appearance. Freedom of thought, conscience and belief is no less important. A school would have to meet the requirements of section 5 of the Bill of Rights before it could prohibit students from wearing red poppies on ANZAC day or red ribbons on AIDS Awareness day. Section 14 states: 14. Freedom of expression--Everyone has the right to freedom of expression, including the freedom to seek , receive and impart information and opinions of any kind in any form. Since this section was enacted, it would be fair to say that there has not been a significant outpouring of expression from New Zealanders. This is in sharp contrast to the United States’ position, where freedom of expression under the First Amendment to the Constitution is jealously [24] guarded and actively used. Freedom of expression clearly includes expression through dress and appearance. In the Court of [25] Appeal case of R v Ceramalus, the Court considered the application of section 14 to a lack of dress. The case concerned a naturist who strolled naked in the vicinity of his home. The police charged him with behaving in a disorderly manner in a public place, pursuant to section 4(1)(a) of the Summary Offences Act 1981. He argued section 14 of the Bill of Rights Act (among other provisions) allowed him the freedom to do this. The Court found that the specific nature of section 4 [26] of the Summary Offences Act limited his freedom under section 14. However, the Court also said that the case raised an issue as to whether the test for offensive or disorderly behaviour required modification in light of the Bill of Rights Act. The Court declined to determine this question as it would have no application in the case before the Court. Neither the fact nor the extent of the application of section 14 to children and young people has been tested in the New Zealand courts. There are some who argue that it is nonsensical for children to be entitled to enjoy freedom of expression. However there are no good grounds for arguing that the section was not intended to include minors. It refers to "everyone" and there is nothing in the application section to limit the applicability of either specific sections or the Bill of Rights as a whole. [27] Of course, the Courts have applied other provisions of the Bill of Rights to children. In my view a New Zealand Court would not hold that the section simply did not include minors. However, it would be possible that children would have to expect greater limitations on their freedoms than young people, and that this would be justified by relying on section 5 “reasonable [28] limits” and possibly importing a Gillick type understanding and maturity argument. In the absence of any case law holding section 14 is not applicable to children or young people, or limiting its applicability, a school will need to consider this section. The Human Rights Act 1993 The Human Rights Act is an Act “…to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights”. An example of such a Convention would be the Convention on the Rights of the Child. Accordingly it would be in order for the Human Rights Commission to look to the Convention for guidance on children’s rights. The Act is intended to promote human rights rather than merely prevent discrimination. The Commission does this through various educative means. It also receives complaints of discrimination from individuals. Contrary to a common perception, the Act does not prohibit discrimination that is solely on the basis of appearance. For example, a complaint could not be taken that one was discriminated against because of one’s green hair. It does apply where appearance is a manifestation of ethnic origin or religion, for example. The prohibited grounds of discrimination are set out in section 21. The grounds are: sex, marital status, religious or ethical belief, colour, race, ethnic or national origin, disability, age, political opinion, employment status, family status and sexual orientation. There are specific sections concerning discrimination in access to educational establishments. These apply to all schools, including private schools. The relevant one for our purposes is section 57. This states: Educational establishments—(1) It shall be unlawful for an educational 57. establishment,… (a) To refuse or fail to admit a person as a pupil or student; or (b) To admit a person as a pupil or a student on less favourable terms…or (c) To deny or restrict access to any benefits or services…or (d) To exclude a person as a pupil or a student or subject him or her to any other detriment,-by reason of any of the prohibited grounds of discrimination. An example of the application of section 57 is the situation where a student seeks to dress in a certain manner in accordance with her religious beliefs, and that manner is not in accordance with the school’s dress code. In this instance, it may be unlawful under section 57(1)(c) to exclude her from representing the school because she was failing to comply with the school’s dress code. The dress and appearance complaints considered by the Commission have included allegations of cultural, religious and sex discrimination. In 1991, two intermediate schoolgirls complained to the Commission because they were prevented [29] by their school’s uniform code from wearing shorts at school. They found this restricted their freedom to use playground equipment and ride their bicycles. On occasion they also experienced teasing from male students who saw their underwear when they were engaged in these activities. By contrast the boys at the school were under no such limitation. The board initially suggested the girls ride to school in their skirts and change into their physical education gear as soon as they arrived. As this included track pants the board felt it would deal with the issue. However, the girls still felt discriminated against because they were obliged to go and get changed as soon as they arrived at school whereas the boys could run straight over and participate in using playground equipment. They also questioned why the school was seeking to control their clothing outside the school gates; in fact this appeared to be of greater concern to the board than the clothes they wore whilst attending school. After investigation, the Commission formed the opinion that the complaint had substance. However it considered that no further action was required because the school had amended its uniform code while the matter was under investigation. The amendment was to include “culottes” as a uniform [30] item for girls. [31] The In 1994 the Commission considered a student’s complaint of religious discrimination. student was Muslim and sought to comply with the Islamic dress code which required that his legs be suitably covered in public. The uniform code required that junior boys wear shorts and long socks; seniors were allowed to wear long trousers. The school’s uniform code did not make any reference to religious matters. Therefore the complaint was considered as one of indirect discrimination. This was under section 65 which states that a requirement that is not apparently discriminatory, can nevertheless be found to be so if it has the effect of treating one person or group differently by reason of one of the prohibited grounds of discrimination. The onus is on the defendant to establish good reason for the discriminatory practice. The Commission formed the opinion that the uniform requirement had the effect of indirectly discriminating against the student on the basis of his religious beliefs. The school board said the student and his mother had agreed that he would comply with the school uniform requirements when he joined the school and that the code was strictly enforced so all students were treated as equals. The Commission did not find this constituted “good reason” pursuant to section 65. Accordingly the issue arises of whether one can contract out of one’s rights in advance. In Harrison [32] and Ors v Tucker Wool Processors Limited, the Employment Court struck out provisions in an employment contract that purported to require employees to contract out of their New Zealand Bill of [33] Rights entitlement to refuse to undergo medical treatment (workplace drug-testing and medical examinations). The Court held the provisions were harsh and oppressive in requiring employees to consent to this in advance. The case is due before the Court of Appeal on 12 July 1999, so it will be interesting to see how the Court views this issue. It is noteworthy that the Commission referred to the school’s charter, which stated the school’s Goal A was to: enhance learning by ensuring that the curriculum is non-sexist and non-racist and that any disadvantage experienced at the school by students, parents or staff members because of the gender or religious, ethnic, cultural, social or family background is acknowledged and addressed. Goal B was to: enhance learning by ensuring that the school’s policies and practices seek to achieve equitable outcomes for students from all religions, ethnic, cultural, social, family and class backgrounds. The uniform’s stated purpose was to achieve “a neat, well groomed appearance which fosters pride in the school and in the student.” The Commission was of the opinion that the uniform’s stated purpose would not be undermined in any way if the student were simply allowed to wear long trousers, as seniors were permitted to do. The Proceedings Commissioner decided to issue proceedings before the Complaints Review Tribunal. However the matter was then settled between the parties by the school allowing the student to wear the long trousers the uniform code provided for senior boys. It also agreed that other Muslim students would be allowed to seek the same variation to the code and that an amendment would be inserted to allow for variations in special circumstances where there were religious or medical reasons. Finally, the Board paid the legal costs of the Commission. [34] A further dress and appearance complaint concerned discrimination on racial grounds. The student was attending an intermediate school that operated a dress code prohibiting “jewellery” at [35] school. The student sought to wear his “taonga” to school in its usual position (at the base of his [36] throat). His mother said this position had been chosen by the whanau when he was a baby. The Principal permitted Maori students to wear taonga to school but only in such a way that they could not be seen, i.e. by hanging them low or buttoning shirts right up. The Principal agreed that taonga had particular cultural and spiritual significance to Maori. The Commission formed the opinion that the refusal to allow the student to wear his taonga openly [37] amounted to subjecting him to detriment by reason of his race, and that it was important that taonga be able to be worn openly as they were symbolic of cultural identity. All the matters described above concern sincerely held beliefs or a significant restriction on one’s ability to participate. In my experience, the Commission is reluctant to involve itself in school dress and appearance matters where these elements may not be present. For example, a boy who wishes to wear his hair long against his school’s wishes, is unlikely to be able to persuade the Commission [38] to investigate, unless this is for cultural reasons, for example. The United Nations Convention on the Rights of the Child New Zealand ratified the United Nations Convention on the Rights of the Child (“the Convention”) with some reservations on 13 March 1993. The effect of ratification is that New Zealand is required to enact new legislation and review existing legislation where children's rights are currently not protected by law, and also publicise the Convention and create ways to safeguard children' s rights. The narrow view is that international instruments only translate into domestic rights for citizens where specifically incorporated (as in the New Zealand Bill of Rights Act 1990, for example). However the New Zealand courts have recently taken a more inclusive approach. Tavita v Minister of Immigration [39] is a leading example of this. In Tavita, the Minister of Immigration and the Department argued that they were entitled not to have regard to the Convention on the Rights of the Child. Cooke P. considered this was an “unattractive argument” implying New Zealand was using international [40] instruments in part as “window dressing”. In light of the above, and given the specific purpose of schools to educate children, we can safely say that obligations under the Convention need to be taken into account when a school promulgates bylaws. Regrettably there seems to be a lack of knowledge about the Convention in the community [41] and even among those who work with young people. The Convention applies to children under 18 years of age. The articles immediately relevant to this discussion are articles 12 and 13 and 28 and 29. Article 12 refers to consulting with children. It states: State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. Consultation on school rules could be via classroom discussions, elected groups of students or [42] surveys. Article 13 states that children have the right to freedom of expression. This freedom can only be restricted when the law provides so and it is necessary to do so to respect the rights or reputations of others or for the protection of national security or of public order, health or morals. The onus would fall on the body seeking to restrict that freedom to show why a limitation was necessary and prescribed by law. Article 28 recognises the right of the child to a free education (at least at primary level) and states that discipline should be administered in conformity with the child’s dignity. A primary school introducing a uniform would need to be mindful of the impact of the “free education” statement and ensure no child was excluded from attending that school for lack of the resources to obtain a uniform. Article 29 sets out the purposes of education. These include: The development of the child’s personality, talents and mental and physical abilities to their fullest potential;… The development of respect for human rights and fundamental freedoms,… The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living,… The preparation of the child for a responsible life in a free society, Article 29(2) provides that these purposes shall not be construed to override the liberty of organisations to direct educational establishments, as long as they conform to the principles set out above and the minimum standards prescribed by the State. The Treaty of Waitangi and Customary Law The Treaty of Waitangi sets out the nature of the partnership between the indigenous Maori people and the Crown. The Treaty is an international document and also a statement of customary Maori law, “Tino Rangatiratanga,” as well as British Common Law. Under their charters, boards must develop policies and practices that reflect this partnership. School [43] boards are required to bear in mind that Maori retain control over “taonga” under Article Two and ensure dress and appearance regulations are consistent with this. In relation to the wearing of school uniforms, there is a significant history of this practice at state secondary schools. It may be that the practice could be said to form part of New Zealand European customary law. On that basis it may resist challenge by a student arguing a dress code, at least at secondary school level, cannot be enforced. A Comparison - the United States position The United States Constitution is a fundamental constitutional document in that country. Challenges to school rules regarding dress and appearance have been run pursuant to the First Amendment and due process rights. The First Amendment states: Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Freedom of expression is subject to considerable judicial protection in the United States. By contrast New Zealanders appear rather compliant when it comes to limits on freedoms. The case law in the U.S. continues to develop, the focus at this stage appearing to be on the constitutionality of school uniforms in public (i.e. ‘state’) schools. In August last year, a group of South Carolina parents were reported to be taking a federal lawsuit against their local elementary school’s principal and district superintendent, alleging violation of their children’s rights to free speech and due process. The [44] school was introducing a compulsory uniform. The leading case on freedom of expression is Tinker v Des Moines Independent Community School [45] District. The case concerned a protest against the United States war in Vietnam. A group of students (between 8 and 15 years old) wore black armbands to school to signify their protest. They made their protest without disrupting classes. They took this action knowing that the school had, a few days before, adopted a regulation that black armbands would be prohibited and students wearing them instructed to remove them. Failure to do so would result in suspension. They were duly suspended from attendance. Through their parents, they sought an injunction restraining the school from continuing to discipline them and seeking nominal damages. The matter went on appeal to the Supreme Court where the majority held that the school’s regulation was unlawful, in the absence of evidence that the wearing of armbands would substantially interfere with the school’s operation or affect other students’ rights. The Court held the students’ behaviour was akin to “pure speech” and as such protected by the First Amendment. It considered the school’s reaction was due to its desire to avoid the possible controversy caused by the students’ expression, rather than a fear of undue disruption in the school. The Court stated: It can hardly be argued that either students or teachers shed their constitutional rights at the schoolhouse gate. This has been the unmistakable holding of the Court for almost [46] fifty years. Accordingly it is established that student expression can only be regulated where is a genuine chance of substantial disruption. Chris B. Gilbert, in his paper to the 1998 Education Law Association Conference, says: In most dress code disputes, courts are likely to find in favor of the student, unless facts exist that would reasonably lead school officials to forecast substantial disruption of or [47] material interference with school activities. That said, there are a number of situations where the courts have upheld a school district’s rule limiting student freedom of expression. The courts will be quick to do so where significant disruption can be reasonably forecast. There have been a number of cases involving restrictions on “gangrelated” clothing; the courts have held the rule to be constitutional where the school district was able to show the likelihood of disruption. However, one school’s rule was drawn too vaguely to be upheld [48] by the courts. It appears helpful to distinguish between appearance intended to convey a message and be understood by observers, and a more generalised desire to dress in a certain way. The latter is less protected by the First Amendment than the former. In the case of the former, restrictions can legitimately be imposed where there is a genuine chance of substantial disruption. The matter of boys’ entitlement to wear their hair long has come in for its share of attention. The courts at federal level are split on the matter – in some states a school district cannot rule against long hair without showing that it causes substantial disruption, in others it can. In the early seventies, there were two cases at federal level that reached opposite conclusions on the issue. Karr v Schmidt [50] decided male students had no legal right to have long hair, whilst Bishop v Colaw held that they did, unless there was concrete evidence that it would cause disruption. In this regard, the federal court of appeals stated: [49] No evidence has been presented that hair is the cause, as distinguished from a possible peripheral consequence, of undesirable traits, or that the school board, Delilah-like, can lop off these characteristics with the locks. Accepting as true the testimony that in St Charles, Missouri, the longer the student’s hair, the lower his grade in mathematics, it does not lead me to believe that shortening the one will add to the other… Today, some school districts regulate male students’ hairlength; others do not. Even in states that regulate, the courts can overturn these rules if students have a legitimate religious or cultural reason for wearing their hair long. To what extent will the New Zealand courts interfere? To return to our shores, and specifically to the High Court in Whangarei, Williams J. expressed the [51] view in Maddever v The Umawera School Board of Trustees and others that it will be cautious about interfering in education matters, even where students’ rights are concerned. The Court in Maddever considered that “a tendency to turn always to the law for resolution of these [52] matters would be unwise and inappropriate”. It recommended that such issues be negotiated or [53] mediated in order to resolve them at a local level. However, in relation to a school suspension case, the High Court in M and R v Syms and the [54] Palmerston North Boys' High School Board of Trustees, made the point that: No one should underrate a school child's capacity to perceive and feel personal injustice. The Court must be conscious not only of a public interest in orderly education, but also of a need to protect the individual child, and that child's confidence it can receive justice from authority. In practice the issue regarding the school rule will quite likely arise in the context of the student having been suspended from attendance at school by the principal. This suspension would almost [55] certainly be for continual disobedience which was a harmful example to other students in that she or he had repeatedly and deliberately defied a school rule. The Edwards case [56] Edwards case concerned a third form student who attended Onehunga High School, a coeducational state school, whose board passed a rule limiting hair length for boys only. This was in 1973. To put the case in its social context, the early seventies saw ‘moral panics’; fierce debates about hippies and the threat to conservative society from the new freedoms. "By 1971 one in three [57] of the population was directly involved in the education system..." so anxiety over the markers of nonconformity (such as should policemen be allowed to have sideburns?) was echoed in the schools. Edwards was instructed to comply with the rule on five occasions. He did not and was suspended by [58] the principal under section 130 of the Education Act 1964. The Board's disciplinary committee upheld the principal's decision and ruled that the suspension would continue until the student complied with the rule. The plaintiff took the matter to the High Court and then to the Court of Appeal. In the Court of Appeal, the appellant argued that the rule was ultra vires (i.e. outside the board's rule making authority) or that the suspension was not authorised by section 130 of the Act. The Court held: i) the rule was not ultra vires the empowering legislation; and ii) the principal was entitled to suspend if he considered the pupil was "an injurious or dangerous example to other pupils", because of the pupil's "gross misconduct or incorrigible [59] disobedience" . In relation to the question of whether a bylaw covering the appearance of students was ultra vires the Act, the Court said "…it certainly appears to us that a reasonable governing of appearance and [60] dress fall properly within the ambit of matters to be so controlled." It considered the student's failure to comply with the hair length rule was rebellious in its nature and that it was proper for school boards to restrict students' more outrageous expressions of personal appearance. The section which authorised the Onehunga Board to make rules was section 61 of the Education Act 1964. The relevant portion read: (2) Subject to the provisions of this Act and any regulations made thereunder, the governing body of every secondary school may make such bylaws as are necessary or desirable to enable it to exercise the duties and functions conferred on it by this Act,… As discussed above, the corresponding section today is section 72 of the Education Act 1989. This differs in some significant ways. It states: 72. Bylaws - Subject to any enactment, the general law of New Zealand, and the school's charter, a school's Board may make for the school any bylaws the Board thinks necessary or desirable for the control and management of the school. Clearly it offers school boards greater independence in that they can make “any bylaws the Board thinks necessary…”. However, this is subject to much more comprehensive limitations than under the old Act. Today’s school boards must be mindful of the authority of their charters, any enactments and the general law of New Zealand. This was not the case when Edwards was decided. The Court’s holding that "…a reasonable governing of appearance and dress fall properly within the [61] ambit of matters to be so controlled [by the Board]" still stands of course, but the determination of what is reasonable twenty five years on, will have to take account of prevailing social norms and the legislative rights New Zealand school students are now entitled to enjoy. Consultation One approach which may assist school boards when formulating rules is to focus attention on the consultation process. Trustee board members are elected representatives so they should be representative of the whole school community. However this is not always the case, for a whole variety of reasons. The board may not have a student representative or that young person may not be adequately resourced to provide her or his views. There may be difficulties attracting and retaining Maori members. Perhaps there has been a recent increase in students from a particular ethnic group and there is no one on the board able to represent the views of themselves and their parents. School boards may not be under a legal obligation to consult before promulgating new bylaws. However consultation is consistent with the concept of the school charter as a partnership, the partnership under the Treaty of Waitangi, and with Article 12 of the Convention on the Rights of the Child. As will be recalled, this Article requires that children be consulted and their views given due weight. As educators will know, even young children are capable of expressing views and forming opinions when given information. In both South and Western Australia, education legislation directs that students, staff, parents and the local community be consulted in relation to a proposed dress code. Under a 1996 amendment, the Western Australian Education Act 1928 requires the establishment of a “school decision-making group” for this purpose, and also to participate in deciding objectives and priorities for the school. This does not extend to decision-making in primary schools. [62] Of course, consultation, while important, will not save an unlawful rule. If 67% of the community support a rule which prohibits pregnant students from attending the school the other 33% (or even one student), will be able to seek redress and require that the rule be overturned. This rule would be unlawful under section 21 of the Human Rights Act and also section 19 of the Bill of Rights Act. Accordingly it would be in breach of the laws of New Zealand and therefore ultra vires the board’s power to make rules under section 72 of the Education Act 1989. Consultation can be time consuming, of course. However it is becoming more and more a part of our society and purely on the pragmatic level it has the advantage of encouraging compliance. Accordingly school boards may wish to consider how they can consult more effectively with the whole school community before new rules are promulgated. Conclusion School boards enjoy broad powers to make rules regulating students’ dress and appearance under section 72 of the Education Act 1989. These powers are not without limits; account must be taken of the laws of New Zealand with particular emphasis on the considerable development of human rights based provisions since the Edwards case in the early seventies. These include the New Zealand Bill of Rights Act, the Human Rights Act and the Convention on the Rights of the Child. Consultation with the school community when promulgating rules is consistent with the concept of partnership promoted by schools’ charters, the Treaty of Waitangi and the Convention on the Rights of the Child. However, consultation will not save an unlawful rule; school boards still need to be mindful of their responsibilities under their charters, the laws of New Zealand and such international obligations as are relevant. YouthLaw Tino Rangatiratanga Taitamariki cannot accept liability for any losses suffered by any person relying directly or indirectly upon this paper, as it is intended as general information, not advice provided to a particular client. Solicitor, YouthLaw Tino Rangatiratanga Taitamariki [1] Edwards v Onehunga High School Board and Another [1974] 2 NZLR 238. [2] Edwards v Onehunga High School Board and Another [1974] 2 NZLR 238, at p.241, held school rules constituted bylaws; in that case the power to make rules was under section 61 of the 1964 Education Act. [3] Pursuant to section 4 Private Schools Conditional Integration Act 1975. [4] [1981] 1 NZLR 73 at p. 83. [5] Section 14 Bylaws Act 1910. [6] Section 13 Bylaws Act 1910. [7] This issue was considered in Edwards v Onehunga High School Board and Another [1974] 2 NZLR, discussed below. [8] Constitutional and Administrative Law in New Zealand, The Law Book Company 1993, at p. 687. [9] Above, note 7 at p.240. [10] Under section 19 of the Act, teachers also have health and safety responsibilities to students and themselves. * [11] [12] [13] [1994] 3 NZLR 667. [1994] 3 NZLR 720. For a discussion of these matters see Dr Rodney Harrison QC “The Remedial Jurisdiction for Breach of the Bill of Rights” in Rights and Freedoms (ed. G.Huscroft and P.Rishworth) Brookers 1996, at p.401ff. [14] By analogy, in Federated Farmers v New Zealand Post (the Rural Delivery Fee Case) [1990-92] 3 NZBORR 339 (HC), McGechan J held that mail handling was a public function which was ultimately controlled by government, even if New Zealand Post were an independent entity. [15] (1996) 2 HRNZ 515 (HC); For a more detailed discussion of the issues see Andrew S. Butler "Is this a Public Law Case?" (Auckland District Law Society 1999). [16] Paul Rishworth says section 5 provides for “…a Bill of Reasonable Rights, not a Bill of Absolute Rights”. See Paul Rishworth “Affirming the Fundamental Values of the Nation: How the Bill of Rights and the Human Rights Act affect New Zealand Law” in Rights and Freedoms (ed. G. Huscroft and P. Rishworth) Brookers 1996, at p.106. [17] The question arises of whether we are moving away from purely local control to an intermediate position, which may have the flow-on effect of creating more consistency of school rules throughout the country. [18] [1995] 1 NZLR 700. [19] See below for a discussion of U.S. case law. [20] Watson v Thompson 321 F. Supp. 394 (E.D. Tex.1971). [21] Bishop v Colaw 450 F.2d 1069 (8th Circuit 1971). [22] In this regard, consultation with the school community is a useful tool – see discussion below. [23] Such a challenge would more likely be run via a complaint to the Human Rights Commission under its Act than through judicial review. See discussion on the Human Rights Act below. In disputes of this nature, the Commission’s conciliatory process appears conducive to settlement with the complainant remaining on reasonable terms with the school. Further, judicial review is unaffordable to many people, especially those from minority groups. [24] For a discussion of these matters see Grant Huscroft “Defamation, Racial Disharmony, and Freedom of Expression” in Rights and Freedoms (ed. G. Huscroft and P.Rishworth) Brookers 1996, at p. 171ff. [25] R v Ceramalus, Unreported, CA 14-96, Court of Appeal, 17 July 1996. [26] This conforms with section 4 New Zealand Bill of Rights Act 1990, “Other enactments not affected”. [27] See for example Schier and Another v Removal Review Authority and Another 7 December 1998, Court of Appeal, CA 123/98. [28] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The House of Lords held that a child or young person who has the maturity and insight to understand what is involved in a medical procedure should be able to give legal consent to that procedure; the case has developed the notion of “Gillick competence”. [29] The complaint was considered under the previous legislation, the Human Rights Commission Act 1977. YouthLaw Tino Rangatiratanga Taitamariki, or Youth Law Project as it was previously known, represented the students. [30] i.e. shorts with wide legs so they look like a skirt - I recall culottes to be an item of clothing popular in the eighties. [31] C 149/94, 17 August 1994. [32] Unreported, Employment Court, 30 September 1998 (WC 63/98, WEC 87/97), Chief Justice Goddard. [33] Section 11 New Zealand Bill of Rights Act 1990. [34] C 112/91, 31 October 1994. The complaint was considered under the previous legislation, the Human Rights Commission Act 1977. [35] Taonga are things that are precious, both physical (such as land or significant adornments), and metaphysical, such as language or “mana” (standing / respect). [36] “i.e. extended family. [37] Section 26(1)(d) Human Rights Commission Act 1977. [38] Pursuant to section 76(2)(b), the Complaints Division may refuse to investigate if “the subject matter is trivial” or it is unnecessary to do so. The difficulty for students is that the Commissions’s procedure is generally very effective at promoting a resolution and the matter is invariably not trivial in the student’s eyes, nor in the eyes of the parent, who may see their child’s schooling disrupted by the ensuing ‘stalemate’. The alternative option of judicial review proceedings is beyond most people’s resources. [39] [40] [41] [1994] 2 NZLR 257. Above, note 39 at p.125. Copies of the Convention are likely to be available from the Commissioner for Children’s Office or from the Ministry of Foreign Affairs and Trade, both in Wellington. [42] Under the South Australian Education Regulations 1997 – reg. 77, students are to be consulted about a proposed dress code, and parents can request an exemption from the code. [43] Things which are precious, both physical (such as land or significant adornments), and metaphysical, such as language or “mana” (standing / respect). [44] Associated Press, 24 August 1998. [45] 393 U.S. 503, 89 S. Ct. 733 (1969). [46] Above, note 45, at p. 737. [47] Chris Gilbert, “We are what we wear: revisiting student dress codes”, in Legal Rights in Education: Pendulum Swings, at p.481. (Education Law Association, Charleston, November 1998). [48] Chalifoux v New Caney Independent School District, 976 F. Supp. 659 (S.D. Tex 1997). [49] 460 F. 2d. 609 (5th Cir. 1972). [50] 450 F. 2d 1069 (8th Cir. 1971) ), quoted in The Rights of Students, American Civil Liberties Union, 1988, at p. 40. [51] Unreported C.P. 49/91, High Court, Whangarei, 24 September 1992. [52] Above, note 51 at p.45. [53] While expressing no opinion in relation to the Maddever case, in my experience the vast majority of schools are reluctant to enter into mediation in relation to disputes. Therefore parents contemplate court action because the board and principal are not prepared to agree to mediation. This is unfortunate as early settlement of disputes before positions become entrenched is frequently in everyone’s favour. [54] M and R v Syms and the Palmerston North Boys’ High School Board of Trustees, Unreported C.P. 302 and 303/90, High Court, Wellington, 5 December 1990, at p.55. [55] Pursuant to section 13(1)(a) Education Act 1989 at the time of writing; under the new provisions this will be replaced by section 14(1)(a). The substance of section 14(1)(a) is the same. [56] Edwards v Onehunga High School Board and Another [1974] 2 NZLR 238. [57] Graeme Dunstall, “The Social Pattern” in Oxford History of New Zealand (Ed.G.W.Rice) 1992, at p.466. [58] The relevant part of section 130 read: “130 (1) It shall be lawful for the Head Teacher or Principal of any State primary school or secondary school, to suspend from attendance any child who, from gross misconduct or incorrigible disobedience, may be considered an injurious or dangerous example to other pupils, …” At the time of writing, this section has been superseded by section 13 Education Act 1989. Very shortly (12 July 1999 being the predicted date) by Order in Council, the relevant section will be section 14(1)(a) Education Act 1989, as amended by section 7 Education Amendment Act (no. 2) 1998. The new legislation will import the terms ‘stand-down’, ‘suspension’, ‘exclusion’ and ‘expulsion’. For the purposes of this paper, the general terms 'suspend' or 'suspension' are used to denote a period at which the child is prevented by law from attending the school at which he or she is enrolled. [59] Above, note 56 at pp.244, 245. [60] Above, note 56 at p.243. [61] Above, note 56 at p.243. [62] Section 21D Education Act 1928.