Gretchen Stone, Partner at HarrisonStone Lawyers delves into the legal framework for student discipline, with practical insights when faced with this challenge. Gretchen will be speaking more on this topic at her upcoming presentation at the Education Law Conference in Auckland, where she will also look into the school’s jurisdiction for student misbehaviour on and offline.
The Legal Framework for Student Discipline
The law applying to the Principal’s decision to stand down or suspend a student, and the Board’s decision to return, exclude or expel a student are contained in:
- the Education Act 1989 (sections 13 to 18);
- the Education (Stand-down, Suspension, Exclusion and Expulsion) Rules 1999; and
- the Ministry of Education Guidelines; and
- case law.
Section 13 of the Act provides the overriding focus and purpose when dealing with student discipline. The section emphasises the importance of three factors:
- a range of responses should be given to cases of varying seriousness;
- the disruption to a student’s school attendance should be kept to a minimum and their return to school well facilitated; and
- natural justice must be applied to each case.
Section 14 provides the Principal with the power to stand down or suspend a student. Note that it is the Principal’s discretion and this cannot be delegated to any other member of staff unless the Principal is away from school in which case it will be the Acting Principal who has the discretion. There are two grounds available which justify a stand down or suspension:
- The student’s gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school; or
- Because of the student’s behaviour, it is likely that the student, or other students at the school, will be seriously harmed if the student is not stood-down or suspended.
Note that in both subsections two elements need to be present, the first is establishing the behaviour of the student as being of sufficient seriousness, while the second is the risk this behaviour poses to other students.
Gross misconduct or continual disobedience is by far the most common rationale for stand down or suspension decisions. The Principal must select one or other of these options – gross misconduct or continual disobedience – and be satisfied (in both scenarios) that it is a harmful or dangerous example to other students.
There are restrictions around standing a student down, including that the stand down may be for one or more specified periods which must not exceed 5 school days in any one term, or 10 school days in total in that year. The Principal must advise the Ministry and parent of the stand down, the reasons for the decision and the period for which the student has been stood down. The student’s parents may request a meeting.
The Principal’s Decision
In deciding whether to stand a student down or suspend, the Principal only need to satisfy him/herself that the requisite factors have been met. There is no obligation to consult with a student’s parents prior to a suspension or stand down decision being made, although a Principal can choose to do so. This was confirmed in the Court of Appeal decision of Bovaird v Board of Trustees Lynfield College.
The Principal should however ensure that they have all of the information in relation to the incident(s) before making the suspension or stand down decision. There is no time limit on the decision to suspend or stand down, the matter should be dealt with promptly but should be thoroughly investigated before a decision is made as to whether stand down or suspension is appropriate.
A Principal who decides to suspend a student has the following duties:
- To take all reasonable steps to ensure that the student has the guidance and counselling that are reasonable and practicable in all the circumstances (section 17A of the Act).
- Provide a report that contains all information relevant to the suspension for the Board (Rule 14).
- Advise the student’s parents as soon as practicable after the suspension of the time and place of the Board’s suspension meeting and provide written information about the statutory options available to the Board to deal with the suspension (Rule 15).
- At least 48 hours before the suspension meeting, ensure the student’s parents receive information on the procedures that the Board follows at the suspension meeting, advice that they may attend and speak at the meeting and all material that is to be presented by the Principal or the Board at the meeting (including the Principal’s report) (Rule 15(2)).
One important concept in determining whether there has been gross misconduct or continual disobedience is the idea of “zero tolerance”. In legal terms, schools should not tolerate violence – they are required to take all reasonable steps to prevent it, and such steps include dealing decisively with it when it does occur. Care needs to be taken, however, to ensure that any sanction imposed is appropriate in the particular circumstances and is not determined solely by the “zero tolerance” policy. While a zero tolerance policy is reasonable, there should not be an automatic stand down or suspension as a result of a breach of it.
Jurisdiction – When is it an issue for the school to deal with and when is it not?
Schools are increasingly having to address misconduct that occurs outside of school, and this is particularly relevant in the context of social media. There is a jurisdictional issue which is sometimes raised and for which there is no clear or definitive answer for every situation.
In considering whether the school has jurisdiction over an incident where it occurs outside school it can be helpful to consider whether the incident has an impact on the school environment. Regardless of whether an incident occurred outside of the school gates or outside school hours, schools have the responsibility and the power to act when any such incident comes to the school’s attention and could reasonably be expected to impact negatively on the school learning environment.
Although not the focus of any Court decisions, the jurisdictional issue is something that has been raised by representatives for students in both Court and Ombudsman inquiries. For example, in the case of J v Board of Trustees of Lynfield College  NZAR 660, it was suggested that when the student was initially suspended he was truanting and the alleged misconduct had occurred outside the school grounds – the student was brought back to school where his bag was searched and drug paraphernalia was found. This submission was not accepted by the Judge and similarly, in an Ombudsman inquiry involving a challenge to the suspension of a student who was said to have smoked marijuana at a house away from school during lunchtime, the Ombudsman was satisfied that the school had jurisdiction in relation to the matter.
The jurisdictional issue in the context of social media has not yet come before the Courts in New Zealand. As outlined above, the focus when considering jurisdiction is on the impact on the school community. For example, Facebook exchanges between two students on their own personal digital devices which occurs in the evening will be outside of the school’s jurisdiction. However, when the same two students engage in a fight at school and one student brings a weapon to school because they say that they need to defend themselves from the other student, the Facebook exchanges may become relevant in the context of disciplining the students in relation to the fight.
A Principal will need to determine whether in relation to social media communications outside of school, there is a sufficient nexus between the offending and the school. Generally, where there is the potential for negative effects on the wellbeing of others within the school community, then the Principal will have jurisdiction, and in fact a positive obligation, to act. Of course where the incident occurs within school hours or on the school computer system, there will certainly be jurisdiction for the school to investigate.
The Board Hearing
- The Board suspension meeting must take place within 7 school days of the suspension (or 10 calendar days if prior to the term break) before deciding on each of the statutory options. The Board must consider all of the statutory options available to it, and consider all of the submissions from the student and their parents and/or representative. The Board may also try to get all the parties to agree on what the decision should be prior to making a decision.
- Once a decision to stand down or suspend a student has been made, section 18 of the Act provides for the following:
- Where a student has been stood down the Principal must immediately tell the Secretary and a parent of the student that the student has been stood down, the reasons why, and the period of the stand down.
- Where a student has been suspended the Principal must immediately tell the Board, the Secretary, and a parent of the student that the student has been suspended and the reasons for the Principal’s decision.
- There are 3 options available to the Board, which are provided for in section 15 (for students who are younger than 16) and section 17 (for students who are 16 or over). The options are:
- Lift the suspension either unconditionally or subject to reasonable conditions (these conditions must be aimed at facilitating the student’s return to school);
- Extend the suspension for a reasonable time (again facilitating the student’s return to school);
- Exclude or expel the student by extending the suspension and requiring the student to enrol at another school.
- Where a Board lifts a suspension, extends a suspension, excludes a student, or expels a student, the Board must immediately tell the Secretary and a parent of the student, that the suspension has been lifted/extended, and the period of extension or that the student has been excluded or expelled and the reasons for the Board’s decision. The Board’s decision, and the reasons for it, must be recorded in writing.
- Note that if a student fails to comply with a condition imposed the matter may be referred back to the Board for re-consideration under section 15(3) or 17(3) of the Act.
- If the Board does not hold a meeting and take action within 7 days of the suspension by either lifting, extending or excluding the student, then the suspension will lapse and cease to have effect after this timeframe. There are no exceptions to this, even where the student and parents agree to an extension.
- If a student is excluded by a Board then the Principal must take steps to arrange for that student’s attendance at another school. If the Principal is unable to arrange for this to occur within 10 days of the student’s exclusion then the Principal must let the Secretary know what steps they are taking in the meantime.
- Where a student who is 16 years or older is expelled there is no obligation on the Board to require the student to attend another school, nor is there any obligation on the Principal to arrange for the student’s re-enrolment elsewhere.
- Any conditions imposed by the Board must be reasonable and aimed at facilitating the return of the student to school. If a student’s suspension is subject to conditions, the Principal must take all reasonable steps to ensure that an appropriate educational programme is provided to the student with the purpose of facilitating the return of the student to school and minimising educational disadvantages that occur from absence from school.
Gretchen Stone is an employment specialist, and provides a broad range of general employment advice for clients. Gretchen also has a background in corporate and commercial law, and provides commercial advice to clients on all aspects of commercial and corporate law. Gretchen has extensive employment experience, and acts for a range of clients in dispute matters, as well as drafting compliance documentation and agreements, and general advice on employment law. Gretchen’s areas of industry expertise include education, service industry, transport, and manufacturing. You may connect with Gretchen via email or LinkedIn