School Board of Trustee and Principal failed to follow disciplinary process; contrary to law
School Board of Trustees fails to follow statutory criteria for suspension of student (failure to provide guidance and counselling)—suspending a student is a serious step requiring careful consideration—the Ombudsman’s investigation of a wide-ranging complaint by a mother about the manner in which a school had dealt with various aspects of her two sons’ behaviour, culminating in the indefinite suspension of one of her sons, highlighted the need for Principals and Boards of Trustees to familiarise themselves thoroughly with the procedural requirements of s 13 of the Education Act 1989
In the investigation, two issues emerged for consideration: whether criteria for suspension, as set out in section 13(1) of the Education Act 1989 had been met and whether the Principal complied with the statutory requirements of s 13(4) of the Act. In the case M and R v S & Board of Trustees Palmerston North Boys’ High School (1990) HC Palmerston North, CP 302 and 303 5/12/90 at page 45, Justice McGechan stated: ‘…Principals may suspend only where s 13 conditions such as ‘gross misconduct’ and ‘harmful or dangerous example’ exist…’ He went on to consider what might constitute ‘gross misconduct …which is a harmful or dangerous example to other students at the school’ and stated in this regard (at page 58 of the judgement):
...gross misconduct involves misconduct striking and reprehensible to a high degree which warrants removal of the student from school despite damage which would result to the student. Whether conduct attains that level will depend on all the circumstances of a particular case …
In this case, the Principal advised the Board of Trustees (the Board) that events that occurred on a specific date led to the student’s suspension for an ‘unspecified period’. However, it was not clear in what way the Principal considered the student’s behaviour on that day amounted to either ‘gross misconduct’ in the sense of being ‘misconduct striking and reprehensible to a high degree which warrants removal of the student from school despite damage which would result to the student’, and/or to ‘continual disobedience which is a harmful or dangerous example to other students’ and ‘behaviour likely to seriously harm himself or others’. In his letter to the student’s mother advising her of the suspension of her son for an unspecified period, the Principal did not distinguish between the categories of misbehaviour outlined in section 13(1)(a) and (b) of the Act nor did he justify the application of these sections in relation to the specific behaviour which led to the suspension.
In addition, the Board’s procedural actions appeared to have been flawed. The minutes of the suspension meeting indicated that, although the Board discussed at length whether the suspension should be lifted, lifted with conditions, or extended, it failed to consider whether the statutory criteria for suspension existed in the first place. The minutes merely recorded, in summary, that the decision to extend the suspension to the end of the calendar year was based on the principal’s written report.
The Board accepted that neither the Principal’s letter of suspension nor the Board’s minutes were clear as to the grounds relied upon for the suspension in terms of section 13(1) of the Education Act. However, it advised that the events on the day identified in the Principal’s report to the Board were the final straw in a long, documented series of events. The Board noted that the report set out the history of the student’s behaviour and provided details of the continual disobedience which had led the Principal to conclude that the student should be suspended.
Only a Court could determine whether the Principal’s notification of the reasons for the suspension could be read to include any or all of the student’s disobedient and disruptive actions up to and including his actions on the day in question. Similarly, it would be up to a Court to determine whether the student’s conduct on that day, or at any other time, if other actions were deemed to be included as reasons for the suspension, had attained the level prescribed by statute and precedent. However, in as much as the law requires the basis of a suspension to be a specific act or series of acts to which at least one of the grounds of section 13(1) of the Act applies, it appeared that the Principal had not provided clear notification of what that act or series of acts was. Nor did he, or the Board of Trustees, identify clearly which ground or grounds of section 13(1) applied to the act or actions in question. Accordingly, the view was formed that the suspension may have been ‘contrary to law’ in terms of section 22(1)(a) of the Ombudsmen Act 1975. In respect of the second issue, s 13(4) of the Education Act states:
‘(4) The principal of a state school shall take all reasonable steps to ensure that a student suspended from the school has the guidance and counselling that are reasonable in all the circumstances of the suspension…’.
The school advised that the mother was fully informed of her rights and had been given a copy of a pamphlet published by the Ministry of Education entitled ‘Suspension and Expulsion - Rights of Parents and Students’. In addition, it had given the student counselling and guidance support up until the time he was suspended. The school noted that it was unclear who might have been able to provide such guidance and counselling once the student had been actually suspended. The Ombudsman concluded that on its face, the mere provision of written information to the mother did not suggest that the Principal took ‘all reasonable steps to ensure’ that the student received the guidance and counselling which were reasonable in the circumstances, particularly the circumstances where the suspension was for an unspecified period. The Ombudsman concluded the Principal may have acted ‘contrary to law’ in that he had failed to fulfil his statutory obligation in respect of section 13(4) of the Education Act.
Although these two aspects of the complaint were sustained, the investigation showed that in other respects the Principal and the Board of Trustees had acted reasonably and gone to considerable lengths to help the student, his teacher and the mother. Accordingly, no recommendations were deemed appropriate.
This investigation illustrates the need for Principals and Boards of Trustees to consider and document all the relevant factors at each step of the suspension procedure so that the reasons for each decision taken are transparent and can meet the tests established in M and R v S & Board of Trustees Palmerston North Boys’ High School (1990) HC Palmerston North, CP 302 and 303 5/12/90, McGechan J. (See also D v M and the Board of Trustees of Auckland Grammar School (1998) HC Auckland, M477/97, 11/06/98, Smellie J).) The investigation was undertaken before the Education (Stand-down, Suspension, Exclusion, and Expulsion) Rules 1999 came into effect on 12 July 1999.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.