Simpson Grierson’s Public Law and Government Partner Sally McKechnie and Summer Clerk Sam Hart discuss how schools can minimise risk when enforcing school uniform rules, with reference to high profile cases and the law.
Sally will present on the topic: Buzz-Cuts and Board Decisions: Human Rights and Natural Justice in Schools, at the Education Law Conference on Tuesday, 12 March. Sally previously wrote for Legalwise News on, “Physical Restraint in Schools – Education (Update) Amendment Act 2017 One Year On”.
Already this year, three cases of schools enforcing uniform standards against students have made headlines. According to media reports, Auckland Grammar had cutting remarks for student James Hunt’s long hair; Te Puke High School was unimpressed with Brody Hide’s beard; and Marli Atu plans to complain to the Human Rights Commission after being told by Glenfield College to cover up his cultural Pacifica arm tattoo.
In light of these stories, here are some guidelines for principals to minimise legal risk when setting and enforcing uniform standards.
First, have clear rules. In 2014, the High Court decided that a school rule on hair was invalid as it lacked certainty. The rule that required “hair that is short, tidy and of natural colour.” Further, “hair must be off the collar and out of the eyes”. The Court took issue with the uncertainty of the word “short”, and that “there can be diametrically opposed views” on whether the student in question had short hair or not.
If your school rules have subjective language, it might be time to review it. For example, inserting the language in the above rule that “hair should not be long enough to be tied up in any form”, would provide more clarity for students.
Second, ensure that the student has had an opportunity to tell his or her side of the story. There are both legal and non-legal reasons for this. Legally, a school must have a fair process in place if it decides to take any disciplinary action against a student. Where the potential consequences are more serious (ie suspension or expulsion), the standard required of the process is higher. A key aspect of fair process is hearing all sides of the story.
Aside from the legal implications, a conversation with the student may help you avoid the headlines. For example, in relation to Marli Atu’s tattoo, the Principal of Glenfield College said that the school was able to make exceptions to the tattoo rule on cultural or religious grounds. Atu said that the option of seeking a waiver to the rule had never been put to him. In that case it would appear, better communication between the school and student could have resolved the issue without the need to involve the press or the Human Rights Commission.
Third, ensure that any consequences for breach of uniform standards are not heavy handed. The courts stress that any discipline must be proportionate to the offending. While this is especially so for suspensions and expulsions, other disciplinary action should be proportionate to the student’s behaviour. This means that you should consider all the disciplinary options available in a given situation.
In particular, if the issue is only that a student is in breach of the school’s uniform standards, suspension (and by extension, expulsion) is very unlikely to be an available option. Continued disobedience of a school’s dress code is unlikely to justify suspension. A child’s right to attend school is enshrined under the Education Act 1989 and the UN Convention on the Rights of the Child. Accordingly, schools need to take great care that any disciplinary action minimises disruption to a student’s attendance.
Further, any suspension would likely breach section 14(1) of the Education Act. This section requires that the behaviour constitutes a harmful or dangerous example to other students. The courts have not been persuaded by arguments that a student’s appearance is a harmful or dangerous example to others. Of course, if a student was dressing in a threatening way, for example by wearing gang paraphernalia, the legality of suspension is far more likely.
Finally, do take some comfort in your ability to enforce school rules. The courts are unlikely to interfere with discretionary disciplinary decisions, provided that they do not disrupt a student’s attendance at school. This still leaves schools a wide array of options for dealing with specific uniform breaches.
Partner Sally McKechnie is a leading public law and regulatory litigator and leads Simpson Grierson’s Wellington-based government and public law practice. Sally provides advice and representation on regulatory and statutory compliance, administrative decision making and processes, statutory interpretation, policy development and law reform. Sally’s approach is informed by her experience as a litigator. She is an experienced public law advocate, with considerable trial and appellate experience. Sally has appeared regularly in the High Court and Court of Appeal. Sally has particular expertise in regulatory compliance in the primary sector, education, health and medico-legal, privacy and official information. Sally joined the firm from Crown Law in May 2017. As Crown Counsel, she advised Ministers and senior officials on their public, regulatory and administrative law obligations. Sally was a Rhodes Scholar at Oxford University and began her legal career at another major New Zealand law firm. Contact Sally at [email protected]
Sam Hart is a Summer Clerk at Simpson Grierson. He is in his final year of study at Victoria University. Connect with Sam via LinkedIn.