New Zealand Law Society - When two breaches don't make a right

When two breaches don't make a right

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Motueka High School found itself in the media recently with a dispute over the students’ right to wear puffer jackets in the wintery weather conflicting with the school’s right to enforce a uniform code that did not permit these jackets.

This was the latest in a series of arguments about school rules and discipline which peaked in 2014 with the case of Luke Battison’s haircut and that of the St Bede’s rowers earlier this year.

In the St Bede’s situation (Kennedy v Boyle [2015] NZHC 536), Justice Rachel Dunningham granted an injunction preventing the school carrying out a consequence it had proposed and the headlines that followed the granting of the injunction stated: “Court action stinks of self-entitlement”; “Everyone loses with St Bede’s case”; “St Bede’s decision a worrying trend”; a “dangerous precedent”; “Principal slates infantile St Bede’s parents”; a “ridiculous decision that undermines the school’s authority”.

Mai Chen injected a note of reason into the initial debate in the New Zealand Herald (25 March 2015) when she said: “The rowing case does not change the ability of schools to discipline their students for misbehaviour as long as the school follows due process and ensures the particular punishment proposed was not disproportionate ... here there were serious questions of law to be tried and the applicants would have been irrevocably prejudiced (if the injunction were not granted) whereas the school is still able to discipline the students after due process.”

And that goes to the heart of the problem. All of us in this decent and civilised country of ours have the right to natural justice. As Mai Chen remarks, s 27 of the Bill of Rights Act 1990 protects both the right to natural justice and the right to judicial review. Schools are subject to public law obligations and also have to comply with the due process obligations in the Education Act.

So what message would we be sending to our students and future citizens if we did not accord the same rights and protection to our minors that we accord to all our other citizens? In my view, a very unwise and unsafe one.

What can be learned?

We need to ask therefore what can be learned here. What could the school have not done or done differently? First, let Justice Dunningham tell us what the issues are.

She remarks at [24] “that disciplinary decisions, which have serious consequences for the affected student, will be amenable to judicial review if the decision is made in breach of natural justice, or without regard to relevant considerations (which include the proportionality of the punishment to the misconduct) or by having regard to irrelevant considerations”. And, with reference to M and R v Syms [2003] NZAR 705, that it is “necessary to carefully consider an individual case, on its merits, in reaching a decision and in doing that all the individual circumstances must be weighed.”[25]

Justice Dunningham goes on to say at [26] “it is at least seriously arguable that to make a decision based on the emailed report of a head coach who was not present when the incident took place, without interviewing the boys in question or the other participants, and without gathering information on the consequences of the decision to assess whether it was proportionate to the alleged misbehaviour was unfair and in breach of natural justice”.

She adds that “there is a serious question to be tried as to whether the school did have regard to all the relevant considerations, including the consequences of the decisions on other team members, parents and sponsors. Unless that was done adequately it may mean that the disciplinary action taken by the school was not proportionate to the misconduct.” [27]

When schools are taking disciplinary action they need to get the process right. They are required to apply the principles of natural justice and to apply them in the particular circumstances of the case, especially when it comes to imposing punishment.

In an earlier case, Justice Collins observed that he could not see how Lucan Battison’s hairstyle had any connection with his right to education as embodied in the Education Act and that Lucan’s conduct could not be construed as harmful or dangerous to others (Battison v Melloy [2014] NZHC 1462).

The need to observe natural justice does not need to alarm those trying to carry out disciplinary processes as much of it is common sense. Schools should make sure the students are given a prompt and proper opportunity to explain; a chance to have support and advice if the matter is serious; avoid acting on second hand reports or prejudging the matter; and take all relevant factors into account, especially when it comes to imposing punishment.

Encouraging citizenship

However, schools should also look at the wider issues around rules and discipline and consider more transformative approaches if possible. If we are to encourage the kind of citizenship we want to see in our students, we should develop a sense of responsibility and good decision-making in our young people.1

One of the arguments made in the wake (pun intended) of the St Bede’s case was that “the boys didn’t learn the consequences of their actions”; that the school’s authority had been undermined; and the boys would now avoid punishment because the parents’ legal action had allowed them to row in the upcoming competition. The assertion that it would be too late to punish the boys if a procedurally fair investigative process found them to be guilty of the offence defies logic. Indeed, considered consequences may well have been more effective than the original one proposed in haste.

In terms of “punishment,” there was little relationship between the action and the proposed penalty and, as the judgment indicated, a number of non-offenders stood to be punished as well.

In a reported comment on the judgment at the time, the Dean of the Canterbury Law School, Chris Gallavin, said on TV 3 Online “Schools are not there merely to teach in the old words of reading, writing and arithmetic, but they are there to transition young people, especially at high school, into the real world” (TV 3 News Online March 24 2015). Of course, but schools are in the real world too and they are required to act lawfully. Why should students be punished for breaking the rules even if the school failed to conduct a fair process but the school not be held accountable by the courts for their own mistakes?

Dr Gallavin expanded on this view in his LawTalk article when he says that “schools teach values – values we must all learn in order to live harmoniously within society. Rules relating to uniforms, jewellery, hair length and general standards of behaviour are in [his] opinion legitimate conditions to be set by schools in the ordering of their daily operations” (Law Talk 864, 8 May 2015 p22).

Principles take priority

Schools do need to teach values but principles are ultimately more useful than rules when it comes to doing so. Inflexible rules and inflexible processes do not develop good judgement and, if we want our young people to learn responsible citizenship, we need them to grasp the underlying reasons for social obligations and the obligations themselves need to be meaningful ones.

Adversarial, rights-based and fact and fault finding approaches escalate differences and exacerbate damage while interest-based problem-solving ones allow the participants to maintain relationships and dignity – and to grow up. Much cost – in every sense – can be averted.

Any guidelines for behaviour should ideally be ones into which the students themselves have had significant input and we should apply the same criteria to our school pupils as we do through employment law to their teachers. Teachers need to obey orders too, but only if these are reasonable, lawful and within the scope of the employment relationship.

I share one of Dr Gallavin’s key premises – as do several recent judgments in the Employment Court – which is that matters such as this do not belong in the courts. In the Lewis2 case, for instance, Judge Colgan talks about education as a “social contract” and says that “there is the potential for dealings between the parties to teaching employment relationships to become prematurely and unduly legalistic”[122].

So, Judge Colgan doesn’t want schools and teachers rushing off to lawyers, Dr Gallavin doesn’t want parents running off to them either and, frankly, I don’t want any of them doing so. We all agree that schools are about community and about “values.”

But, just as the answer would not be, in the employment area, to deny schools or employees the rights available to everyone else under the Employment Relations Act 2000, nor is it in matters of student discipline a solution to deny legislative protection to students and allow schools to breach their pupils’ right to natural justice.

Fair and reasonable society

This is not how we create the fair and reasonable society we all want to see.

If children need to understand that there are consequences for getting it wrong, then adults need to abide by the same principles. There are lessons to be learned from conflict. All members of society need to understand about limits and consequences, about how to work within the rules and the law. But we do no-one any favours if we say that this lesson applies to students but not the schools who teach it to them. Consequences need to be less about punishment and more about regret, responsibility and repair.

For schools it is good advice, some of it given by judges, to review their rules to see if they really need them and, if they do, ensure those rules are clear, certain and enforceable. Get rid of out of date ones and use restorative processes where possible.

The response to the questions raised by the litigation here should not be to change the law so schools don’t need to give their pupils the protection of the requirements of natural justice but rather for schools, first, to equip themselves with the knowledge and training they need, and, second, to explore interest-based approaches to behavioural issues rather than rights-based ones wherever the circumstances permit. Nor should the call be for schools to “lawyer-up” as some commentators have suggested, though perhaps they could “mediator-up” instead.

We are all agreed that behaviour such as that in the St Bede’s case must have consequences: the debate is about the nature of those consequences and the process by which they are reached.

Virginia Goldblatt is the President, NZ Chapter, Australian and New Zealand Education and Law Association and the Director, University Mediation Service, Massey University.

1. See also a very interesting article in the latest International Journal of Law and Education Volume 19 No 1 2014, “Democracy in Schools: encouraging responsibility and citizenship through student participation in school decision making” Sally Varnham, Maxine Evers, Tracey Booth and Costs Avgoustinos

2. Lewis v Howick College BoT[2010] NZEMPC 4

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