School Boards should record reasons for decisions to suspend

Education
Legislation:
Official Information Act 1982
Ombudsmen Act 1975
Related legislation:
Education Act 1989
Legislation display text:
Ombudsmen Act 1975; Education Act 1989; Official information Act 1982
Ombudsman:
Hon Anand Satyanand
Case number(s):
A5572
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Suspension from school for marijuana smoking—school procedures provided for suspension for drug use—application of principles of High Court decision in M & R v Palmerston North Boys High School—need for transparency in decision-making—consideration of requirements of s.23 of the Official Information Act 1982

In this case the complainant believed that her son’s ‘indefinite’ (that is, for an unspecified period) suspension from school for marijuana smoking was unreasonable, given that it was a first offence. She understood that the school’s disciplinary policy provided that ‘indefinite’ suspension could only occur for a repetitive offence. The complainant also regarded the written material provided to the board about her son’s history as unfair and biased, and alleged that the Board had ignored monitoring and counselling support offered to her son by the guidance counsellor. Finally, the complainant asserted that the board had been inconsistent in its application of the policy because in the previous year students found in the school grounds with cannabis had only been suspended for two weeks.

The investigation disclosed that the school’s disciplinary procedures provided for the "indefinite" suspension of a student for drug use/possession whether on a first or subsequent offence. However, before deciding to suspend or extend the suspension of a student, the Principal and the Board must determine whether the incident in question constitutes ‘gross misconduct or continual disobedience’. In this respect, regard must be had to the High Court decision of McGechan J in M & R v Palmerston North Boys High School (CP 302 and 303/90; HC Palmerston North 7/12/1990) which holds that the question of whether a particular act constitutes gross misconduct must be assessed against all the circumstances of the case. The term ‘gross misconduct’ is interpreted as ‘misconduct striking and reprehensible to a high degree’. The case also holds that while schools may have a general policy with regard to drugs, individual incidents must not be resolved automatically in accordance with such a policy.  At each stage of the decision-making process Principals and Boards must exercise their discretion, taking into account special circumstances and considering factors such as ‘humanity and mercy’.

 After considering the particular circumstances of the student’s misconduct, the Board concluded the student had been involved in an act of misconduct that was striking and reprehensible to a high degree and suspension was not unreasonable. The report obtained from teaching staff was in accordance with the general practice of schools to provide an overview of a student’s performance at a Board disciplinary meeting and the information was available to the complainant before the meeting. Minutes of the meeting indicated that guidance counsellor support had been taken into account in the decision-making process. The weight to be given to each aspect was for the board itself to determine. As to the assertion that the Board was inconsistent in the application of its disciplinary policy in respect of drugs, the records did not bear out the claim that the Board had taken a less severe approach in previous years.

Although the complaint about the decision to suspend the student could not be sustained, some deficiencies in the minutes recording the Board’s resolution were noted. There was no reference to section 13(1)(a) of the Education Act 1989 as the legal authority for the suspension and the minutes did not record a formal finding of gross misconduct. Furthermore, the minutes failed to record the Board’s reasons for its decision, its findings on the material issues of fact or a reference to the information upon which the findings were based.

Comment

It is important that decisions of this nature are transparent. The student or the student’s representative could request a statement of reasons for the decision pursuant to section 23 of the Official Information Act. It was therefore put to the Board that in the interests not only of students and parents, but also of the Board itself, it would be desirable in future to ensure that decisions to suspend students be recorded in such a way as to enable a clear and adequate statement of reasons to be provided on request by the student or the student’s representative.

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.

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