Suspension

A Suspension by any other name? Changes to school discipline in New Zealand By: David Fleming Abstract This paper addresses changes in the procedures for exclusion of students from state and integrated schools in New Zealand. It concentrates on the effect of new statutory provisions, and on the review of decisions to remove students from school in New Zealand and in selected overseas jurisdictions. Overview of New Zealand educational administration. (a) Categories of Schools. In New Zealand there are three categories of schools: state schools, integrated schools, and private schools.   State schools are owned and funded by central government. They comprise the vast majority of schools in New Zealand. Integrated schools have non-governmental proprietors, usually churches, which have opted for inclusion into the state system pursuant to the Private Schools Conditional Integration Act 1975. They receive substantial state funding. Private schools, also known as independent schools, remain outside the state system. They receive only limited state funding.  (b) Governance Structure of State and Integrated Schools. The New Zealand education system is highly decentralised, with schools being self-governing in most operational areas. Each school is governed by a Board of Trustees which has the power to regulate its own procedures and constitution, and to make bylaws it considers necessary for the control and management of the school, subject to the general law of New Zealand including the Education Act 1989 and its schedules, and to the school’s Charter. The Board of Trustees is the employer of all school staff, and has ultimate responsibility for all that occurs within the school. The principal is the Board’s chief executive, is responsible for the day to day management of the school, [1] and has extensive statutory powers. 1. The Suspension Process as at June 1999 Part II of the Education Act 1989 establishes procedures for the exclusion of students from state and integrated schools. Only the principal or formally appointed acting principal of a school may suspend a student. New Zealand courts have held that suspension must only be imposed as a discretionary measure, where the principal feels that one or more of the grounds allowing suspension under section 13 of the [2] Education Act 1989 are met, and where he or she considers that suspension is appropriate in all the circumstances of the case. At law each case must be considered on its unique merits. Any [3] fettering of the principal’s discretion may invalidate a student’s suspension. Two types of suspensions may be imposed: specified and unspecified suspensions. A specified suspension is for a period of one to three days, at the expiry of which the suspended student has the automatic right to return to the school. A principal may only suspend a student for a specified period once in a single school year. If a student is suspended for an unspecified period, the Board of Trustees must meet to consider whether he or she should be able to return to the school, and if so when, and under what conditions. [4] The above procedures are set to be substantially amended by changes introduced in, or pursuant to, the Education Amendment Act (Number 2) 1998. These changes are projected to be implemented on 12 July 1999, and are discussed in following sections. There are few statutory requirements covering the exclusion of students from private schools, with each school being free to establish its own procedures. What limits there are arise from overt or implicit terms of the school’s enrolment agreement with parents, and arguably from human rights instruments including section 27 of the New Zealand Bill of Rights Act 1990, which guarantees everybody the right to the observance of natural justice by any public authority with the power to [5] make a determination affecting that person’s interests recognised by law. 2. The Education Amendment Act (Number 2) 1998 Long awaited changes to school suspension procedures are due to be implemented in time for the [6] third term of this year, beginning on 12 July 1999. Since the Education Act 1989 [“The principal Act”] came into force, there has been a steady rise in suspensions and expulsions, accompanied by increasing media attention and apparent concern about the number of students missing out on [7] schooling. The Education Amendment Act (Number 2) 1998 [“The EAA”] was drafted partly in response to this [8] concern, and contains significant changes to processes through which students can be removed from their schools. However questions arise as to how much effect the changes will have in practice, and in whose interests they will operate. The grounds for suspension, which have remained essentially the same since the Education Act of 1877, remain unchanged. While there may be improvements to procedures, the Act does not address the context within which this rise in suspensions has occurred. Students may currently be suspended for either a specified or an unspecified period. Changes in the treatment of specified suspensions, and of unspecified suspensions of students under and over 16 are summarised below. In particular there are major change to the status of conditions under which suspended students may be readmitted to their schools, and which must now be attached to extended suspensions. Ministerial rules which are currently being drafted will dictate the procedure to be followed in the implementation of this framework. 3. From ‘Specified Suspensions’ to ‘Stand-Downs’ [9] Specified suspensions will be replaced by stand-downs . The grounds for imposition of a standdown will be the same as the grounds are for suspension. Students may currently be suspended for specified periods of one to three school days, while stand-downs may be for a period of one to five school days. Whereas a student can only be subject to one specified suspension per school year, students will be able to be stood-down several times, provided that they are not excluded from school for a total period exceeding ten days. At the end of a specified suspension or a stand-down, the student is automatically entitled to return to school, and the family may meet with the principal to discuss issues related to this. These changes may be welcomed, as the greater flexibility they offer could lead to a reduction in the unnecessary imposition of longer suspensions. However there is also an alarming potential for the changes to increase the time spent out of school by students, not only because of the new time periods introduced, but also because the changes in language have led some principals to argue that stand-downs will be less serious than suspensions, and should not be subject to formal reporting [10] processes or to any form of review. 4. Unspecified suspensions of students under 16 Under existing law a school’s Board of Trustees must meet the parents of a suspended student within 7 [calendar] days, to discuss the suspension, and to decide whether it should be lifted (with or without conditions), or should be extended. Boards do not have the power to extend a suspension with conditions. Students under 16 cannot be expelled, but a suspension may be extended for such a long period that the student will never be able to return to the school. Under the new law, the Board meeting must be held within 7 school days or 10 calendar days. The Board may lift the suspension with or without conditions, extend the suspension with reasonable conditions, or extend the suspension and exclude the student permanently. Unless a student is excluded, it will no longer be an option to extend a suspension without conditions. Many of these changes can be welcomed. The ability to extend a suspension with conditions allows issues such as a students’ problems dealing with anger to be addressed within a framework of reintegration into schooling. The introduction of a power to permanently exclude young people does not significantly disadvantage students who may currently be suspended for many years. However the extension of the period for the convening of Board meetings from 7 days to 7 school days may impair students’ ability to successfully resume their education, where Boards decide to lift their suspensions. The recognition of students’ right to address Board hearings should be welcomed, although the change is of little practical consequence as schools typically encourage the attendance at hearings of all but the youngest suspended students, and as the United Nations Convention on the Rights of the Child, which New Zealand ratified in 1993, already guaranteed children the right to speak on matters affecting them. 5. Unspecified suspensions of students over 16 If a student over 16 is suspended, the Board of Trustees must meet his or her parents within a reasonable time, and may lift the suspension (with or without conditions), or may expel the student. Boards do not currently have the power to extend suspensions of students over 16. Under the new law Boards must meet suspended students and their parents within 7 school days or 10 calendar days, and may lift suspensions (with or without conditions), extend them with reasonable conditions, or expel students. In general these changes can be welcomed. The introduction of a maximum period within which suspensions must be considered is positive, but in the past most suspensions of students over 16 we acted for were considered within the same 7 day period as suspensions of younger students had to be. The ability to better individualise outcomes, and to extend suspensions allowing issues to be addressed before students are reintroduced into the school environment may result in a reduction of expulsions, although it may also lead to students who would otherwise have returned to school immediately spending longer out of school. 6. Conditions and Education Where a suspension is extended, schools will be required to provide ongoing education. This is a new duty, although some schools have traditionally provided this service. Suspended students have always been entitled to receive counselling from their school, and this does not change. As conditions may only be imposed around the lifting of a suspension under the current Act, it has not been possible to assess students’ performance of these conditions before deciding whether to readmit them. However as extended suspensions will now be accompanied by conditions, this will be possible, and students who fail to fulfil conditions may not be readmitted. Currently once a student has been readmitted to school, he or she cannot be re-suspended because of an alleged failure to fulfil conditions imposed by the Board. Instead any further suspension must be based upon new conduct sufficient to meet the terms of section 13 of the principal Act. Under the new law principals may request a further Board of Trustees hearing if they feel students have failed to meet conditions following reinstatement. The student is entitled to remain at school pending such a meeting, but the Board may impose any outcome which it would have been entitled to at the original hearing. This has both negative and positive aspects for students. Students who have been reinstated will no longer have the security other students enjoy, and given that some reinstated students we have represented have complained of subsequent harassment by school staff, this could have serious implications. However the ability to enforce the performance of conditions may lead to some Boards being more willing to readmit students than they would otherwise be. 7. Rules Section 8 of the EAA provides for the Secretary of Education to issue rules regulating the processes to be followed by school staff and Boards, and others involved in the removal of students from [11] school, and transitional provisions within the EAA make the implementation of the changes described in this paper conditional upon such rules having been promulgated. At the time of writing, the rules have not yet been issued. However draft rules have been circulated, which are largely a codification of aspects of existing requirements of law (such as the right to natural justice) standardised, made explicit, and adapted to the new statutory framework. In the view of this writer the advantages of the issuing of rules relate not so much to substantive law changes, but to the facilitation of knowledge of, and compliance with the law by bringing together in one place the requirements of a number of separate sources of law, some of which may be obscure to non-lawyers. However given the failure (in our experience and opinion) of many boards to follow the Ministry of [12] Education’s Guidelines issued under the 1989 Act (which substantially performed the same task, although the Guidelines themselves did not independent legal force) mere notification to schools of procedural requirements is not necessarily enough to bring about uniform compliance with the law. This writer considers that compliance can best be encouraged in a climate of accountability. Accordingly the remainder of this paper concentrates on issues of related to the external review of decision-making. 8. Purposive Section The EAA inserts a new section into the principal act, describing the purposes of these provisions, which are to: “(a) Provide a range of responses for cases of varying degrees of seriousness; and (b) Minimise the disruption to a student’s attendance at school and facilitate the return of the student to school where that is appropriate; and (c) Ensure that individual cases are dealt with in accordance with the principles of natural [13] justice.” To date this section appears to have attracted little attention, yet the Court of Appeal has been prepared in the past to overturn an administrative action on the ground that it contradicted a [14] purposive section of the relevant legislation. Accordingly litigants could argue that pursuant to this section a student’s removal from school which was greater in effect than the minimum appropriate disruption to that student’s schooling should be overturned pursuant to this section. This significance of this is that it could allow direct challenges to the substance of a Board of Trustees’ decision; whereas judicial review has traditionally only allowed challenges to the process by which a decision has been made; and the High Court has expressed a reluctance to allow challenges based on the merits of a decision to suspend or expel a student to be made under the New Zealand Bill of Rights Act 1990. Section 9 of that Act provides that: “Everyone has the right not to be subjected to … disproportionately severe treatment or punishment.” However in 1998 the High Court declined to make a finding as to whether a student’s expulsion was [15] disproportionate to his having smoked cigarettes. That judgement contains reference to Canadian case law applying a test of “whether the severity of punishment is so excessive as to [16] outrage standards of decency.” While no doubt courts would exercise considerable caution in looking into such matters, it could reasonably be argued that proof of failure to adhere to a standard of minimum appropriate disruption may require something less than the outrageous excessiveness described above, and this may be of particular importance when read alongside the introduction of objective standards of decision-making into the legislation. 9. From Subjectivity to Objectivity Where the principal Act makes explicit comment on the issue of whether decision-making must meet subjective or objective standards, it repeatedly comes down on the side of subjectivity. This makes a challenge to the substance of what is decided by principals or boards of trustees (as opposed to the processes through which decisions were made) very difficult. However changes contained within the EAA introduce new requirements of reasonableness, increasing the potential for direct substantive challenges to decisions of principal or boards. Section 13(1) of the 1989 Act as it is currently in force states that a principal may suspend a student [17] “if, in the principal’s opinion” the grounds set out in that section are met. This can be contrasted with the new section 14(1), which states that a principal may stand-down or suspend a student “if satisfied on reasonable grounds” that the statutory criteria are met. Accordingly it could soon be possible to challenge a principal’s decision to suspend a student on the basis of unreasonableness, without having to demonstrate bad faith. The decision-making of Boards of Trustees may similarly be affected. Section 16(1) of the principal Act states that: “…the Board of a state school from which a student under 16 has been suspended for an unspecified period – (a) May lift the suspension (unconditionally, or subject to any conditions it wants to make); and (b) May from time to time extend the suspension (for a period determined by the Board when extending the suspension).” These open discretions can be contrasted with the requirements of the new 15(1). This provision will state: “… the Board may- (a) Lift the suspension … either unconditionally, or subject to any reasonable conditions the Board wants to make: (b) Extend the suspension conditionally for a reasonable period…. (c) If the circumstances of the case justify the most serious response, exclude the student…” Similarly the present section 17(1) gives Boards open discretions when dealing with students over 16, while the new section 17(1) will import requirements of reasonableness, although expulsion is not to be explicitly reserved for the most serious cases in the same way that exclusion is. 10. Right of Review Perhaps the most important omission from the EAA is any streamlined process for ensuring accountability where schools do breach their legal requirements. Both the Courts and the Office of the Ombudsman are able to review school removals. However both are highly problematic: the Courts because of the costs and time frame involved, coupled with the discretionary nature of relief under administrative law, and the Office of the Ombudsman because of considerable delays arising from a backlog of work, and because of that Office having only recommendatory powers. Having been advised that either of these approaches are likely to take months or even years and that tangible outcomes are uncertain, most families we work with have little enthusiasm for pursuing formal accountability, although they may harbour deep senses of grievance. While some schools are in our experience conscientious in their efforts to abide by existing law, others in our experience exploit their knowledge that accountability for unlawful suspensions is unlikely. Furthermore while some schools use suspension only as a last resort, others are quick to deprive students of their schooling, and will do so for relatively routine misconduct. These problems of inconsistency and of the ignoring of students’ rights can best be overcome by creating a situation where schools have to be mindful that unlawful or oppressive actions will lead to practical consequences. For students’ rights to have practical effect, YouthLaw / Tino Rangatiratanga Taitamariki has long considered that an Education Review Tribunal needs to be created, allowing cases to be reviewed, and appropriate orders to be made, within a timeframe which is appropriate to the needs of young [18] people seeking to continue their schooling. This view has been echoed by the Office of the [19] Commissioner for Children in a 1997 briefing paper to the Minister of Education, and by the New [20] Zealand School Trustees Association. 11. Expulsion and Independent Review in England and Wales Under the United Kingdom’s Education Amendment Act 1997 the head teacher of a GrantMaintained, County, Voluntary, or Maintained Special School may exclude a student for fixed periods not exceeding 45 school days per year, or may exclude a student permanently. Under the Education Act 1996, if the period of an exclusion exceeds 5 days, or may interfere with a student’s ability to sit a public examination, the head teacher must notify the Local Education Authority, the school’s governing body, and the student’s parents (or the student if he or she is over 18). The Authority must consider whether to reinstate the student. The student’s parents are entitled to appeal a permanent exclusion. Local Education Authorities are required by law to establish Appeal Panels. Their procedures are governed by schedules to the Education Act 1996. Schools’ governing bodies may in addition establish their own appeal processes. Local authorities’ Appeal Panels must meet within 15 school days of receiving an written application for appeal. The parent and the school are entitled to make submissions to appeal hearings. The decision of the Appeal Panel is binding. Where students or parents appeal both to bodies established by schools and to those established by local authorities, the student is entitled to take advantage of the most favourable outcome reached by either body. Aided and special agreement schools must establish and publicise appeal processes which allow involvement from beyond the schools themselves. 12. Evaluation of Appeal Panels What purports to be the first comprehensive review of the appeal system since its introduction in 1987 (pursuant to the Education Act 1986) found that “the appeal system is necessary but is not [21] operating fairly”. In the 1996-97 year appeal panels heard 1128 appeals arising from 12,700 permanent school exclusions. One in five of these appeals was successful. This number of people accessing reviews, over 200 of them successfully in a single year, can be contrasted with the New Zealand situation. Here only a single-digit number of suspension or expulsion-related cases which have proceeded to court since the passing of the Education Act 1989. The relatively high number of appeals in England and Wales has arisen despite what the researchers perceived to be an unconscious bias in favour of schools among panel members, a culture within panel hearings which was seen as impairing many parents’ ability to present their cases, and a lack of representativeness and of legal knowledge [22] among panel members. Retention of the appeal process was widely supported. 93% of head teachers, and 88% of school governors were in favour of the retention of Appeal Panels. Parents who had appealed valued the process although they were critical of aspects of it, and nearly 30% of those who did not appeal subsequently had regrets about not having done so. 13. Procedures in Australia Procedures for the suspension, exclusion, and expulsion of students in Australia, and for review of these matters is a matter of state law, and each state has its own procedures. However consistent themes which emerge nationally include that:    School principals have the power to suspend students for short periods of time. Principals or educational officials can recommend or in some cases impose the permanent removal of a student from school. In general the decision to exclude or expel a student is either made by a body which is external to the school itself (usually containing nominees of the state’s educational authority), or is subject to review by an external body within or containing nominees of the state’s educational [23] authority. No single model presents itself for possible adaptation to New Zealand conditions. However the recurring theme that ultimate decisions upon the removal of children from school should be made by bodies which are independent of the schools themselves highlights the poor protection which is given to New Zealand students, and the ease with which the statutory right to schooling can be lost within this country. 14. Procedures in the USA Generally school discipline is governed by state law in the United States of America, with the exception that federal anti-discrimination law guarantees the rights of disabled students where problematic behaviour is related to their disabilities. The general trend is for superintendents or principals of schools to be able to suspend students, and to be able to expel students, or to recommend to a supervisory body that they be expelled. Most [24] states provide for a right of appeal to an administrative body. The state laws of New York and California are illustrative of the diversity of approaches taken. Article 55 of The New York Consolidated Laws (Education) contains little detail, simply requiring that schools establish their own rules for school discipline, and that all rules must be filed with the regents and the commissioner for education. By way of contrast, the California Education Code is very detailed, and is set out in summary below. 15. The California Education Code Sections 48900 to 48926 of the California Education Code set out in a highly prescriptive manner the procedures to be followed when a student is removed from school. A superintendent of a school district or principal of a school may suspend a student for up to 5 days, based on any of wide range of grounds, or up to 10 days where a student seriously intimidates others. Students cannot be suspended for more than 20 school days from a single school in single school year, or more than 30 days in cases where students have been transferred between schools for disciplinary reasons. Superintendents or principals may recommend the expulsion of students, but may not impose expulsions themselves. The governing body of a school district may expel students upon finding at a hearing that serious offences have been committed. The Code details the processes which may be followed, including evidentiary burdens. Expelled students may not enrol in other schools. However expelling schools must develop a rehabilitative plan for students, and once the reason for a student’s expulsion has been dealt with, he or she should be reintroduced into the school. If the issues which led to expulsion are irresolvable, the school must arrange alternative education for the student. Expelled students are entitled to appeal to the county education board. Appeal hearings at this level must be conducted within 20 school days of the lodging of a request. Appeal hearings can examine a wide range of issues, including matters of process, of the sufficiency or appropriate treatment of evidence, or of the proper use of discretion. It is notable that what is referred to in Californian legislation as an “expulsion” appears similar in nature to a “suspension” under New Zealand’s EAA, while there appears to be no equivalent to the permanent expulsions which may be imposed under New Zealand law. 16. Conclusion The real question when analysing the impact of the Education Amendment Act (Number 2) 1998 will be whether the procedural changes it introduces lead to substantive changes in the outcomes students experience. A number of changes could lead to better outcomes for young people. However much will depend upon the willingness of Boards to work with students; those which wish to do so will have more options available to them; those which currently find it more convenient to suspend for long periods or expel are likely to continue to do so. This lack of consistency could best be addressed by providing students with an effective and independent avenue of appeal, but Parliament has not taken the opportunity to do so. Other jurisdictions have recognised the need for appropriate appeal processes, and those available in England and Wales, and in California offer models which could be potentially adapted to the New Zealand situation. The introduction of a purposive section and objective standards of reasonableness into New Zealand legislation increases the scope for potential legal challenges to oppressive decisions made by school principals and Boards. However no accessible avenue has been created through which such challenges could be made. 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. [1] [2] Parts VII and IX of the Education Act 1989. The grounds for suspension are: “gross misconduct or continual disobedience [which] is a harmful or dangerous example to other students” or behaviour which makes it “likely that the student, or other students at the school, will be seriously harmed if the student is not suspended”. [3] M and R v S and Board of Trustees, Palmerston North Boys’ High School (1990) HC: Palmerston North, CP: 302 and 305, McGechan J; D v M and the Board of Trustees of Auckland Grammar School (1998) HC: Auckland, M.477/97, Smellie J. However in the experience of the writer many schools respond uniformly to all instances of particular types of behaviour, most commonly the use of marijuana, and blanket suspension policies are widespread. (Use of other narcotics is rare in New Zealand Schools.) [4] More details are provided below, under the headings “Unspecified Suspensions of Students Under 16” and “Unspecified Suspensions of Students Over 16”. [5] The question of whether a private school should be considered a public authority for the purposes of this Act has not been resolved in New Zealand courts. The non-governmental establishment and ownership, and the operational autonomy, of private schools suggest they may lie outside the terms of this section. However private schools are required to be registered under the Education Act 1989. Suspensions from these schools must be brought to the attention of the Ministry of Education. Perhaps most importantly, the governing bodies of all secondary schools are included within the second schedule to the Local Government Official Information and Meetings Act 1987. This statutory recognition of the role of private schools within the mainstream education system indicates that private schools could be considered public authorities for the purposes of section 27 of the New Zealand Bill of Rights. [6] However at the time of writing the Ministerial Rules which are to regulate schools’ actions under the new law, and which need to be issued before the statutory provisions can be implemented, have not been finalised. This threatens to delay the implementation of the new provisions, perhaps until the year 2000. [7] A record number of 11,929 students were suspended in 1998. Ministry of Education statistics show a significant rise in the number of suspensions every year from a base level of 4,401 in 1990. [8] ‘Removed’ is used here to indicate that a student has been subject to a stand-down, suspension, exclusion, or expulsion. ‘Removal’ is given a corresponding meaning. [9] See sections 13 and 15 of the principal act as it is currently in force, and sections 13 and 14 as amended. [10] This view was repeatedly expressed by participating principals at Ministry of Education consultation meetings to consider draft suspension rules, which were attended by the writer on 20 April 1999 and 24 May 1999. [11] Rules made under this section are regulations for the purposes of the Acts and Regulations Publication Act 1989 and the Regulations (Disallowance) Act 1989 [section 18AA(4) of the principal Act as amended). [12] Guidelines for Principals and Boards of Trustees on the Statutory and Procedural Requirements for the Suspension and Expulsion of Students Ministry of Education, July 1996. [13] Section 13 of the Education Act 1989 as amended. [14] New Zealand Maori Council v Attorney-General [1987]1NZLR 641. In that case the Crown’s plan for the transfer $11.8 billion of assets to State enterprises under section 23 of the State Owned Enterprises Act 1986 was held to be unlawful, as it could effectively contradict section 9 of that Act, which provided that “Nothing in this Act shall permit the Crown to act in a manner which is inconsistent with the principles of the Treaty of Waitangi.” Although the facts of the case could scarcely be further removed from the removal of an individual’s schooling, the principle that practical effect must be given to broadly worded purposive sections of statutes could be applicable. [15] D v M and the Board of Trustees of Auckland Grammar School, supra. [16] D v M and the Board of Trustees of Auckland Grammar School, supra, at page 70. Particular reference is made to the Supreme Court of Canada case of R v Smith 40 DLR (4th) 435. [17] See note 2 See, for example, Janet, R., ‘Call to set up school discipline tribunal’, Sunday Star-Times 1 May 1994, and Youth Law Project / Tino Rangatiratanga Taitamariki The Effects of Indefinite Suspension on Young People: young people talk about their experiences 1997. [19] Education Review Tribunal: Briefing Paper for the Minister of Education on the Need for an Education Review Tribunal Office of the Commissioner for Children, April 1997. [20] Gadd, B., Jamison, A., Evans, D., Su’a-Huirua, T. Executive Summary Taskforce on Truancy, Suspensions and Expulsions New Zealand School Trustees Association, 1994. [21] Harris, N and Eden, K Parental Appeals Against Permanent School Exclusion Liverpool John Moores University, Liverpool 1997, at p 1. [22] Harris and Eden, supra. [23] [24] School Discipline in Australia (1997) [unatributed] [18] Price, J. The Rights of Students: the basic ACLU guide to a student’s rights American Council of Civil Liberties, Southern Illinois University Press, Carbondale, 1988