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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to - Stand-downs, suspensions and expulsions from NZ schools
IntroductionNew Zealand State schools have a variety of measures available to them to manage schools and discipline students. This includes:
- stand-downs for short, specified periods (usually 1 - 3 days)
- suspensions for longer periods
- exclusion (for students under 16) or expulsion (for those 16 or over)
The law dealing with this area is found in the EDUCATION ACT 1989 (in new sections inserted with effect from 1 July 1999) and the EDUCATION (STAND-DOWN, SUSPENSION, EXCLUSION AND EXPULSION) RULES 1999.
The purpose of the new sections of the Act are to provide a range of responses for cases of varying degrees of seriousness, and to minimise disruption to the student's attendance at school and to facilitate a return to school when appropriate.
Stand-downsThe principal of a state school can "stand down" a student for a specified period (usually for one to three days). At the end of the period, the student automatically returns to school. The principal can lift the stand-down before it expires.
A student cannot be stood down for more than five school days in any one term, nor for more than 10 days in a school year. In calculating the period of the stand-down, the day on which the student was stood-down, and any day on which the student would not otherwise have had to attend school, are not counted.
The principal must notify the Ministry of Education and the parents immediately after standing down a student, and must give the reasons for the decision.
When can a student be stood down?A student can be stood down only if there has been
- continual disobedience or gross misconduct, and the disobedience or misconduct is a harmful or dangerous example to others, or
- behaviour likely to cause serious harm to the student or other students
While these are the same grounds that apply for suspensions (see below), a stand-down is generally imposed for a lesser offence and is often used as a kind of warning. Most stand-downs are for continual disobedience, physical assaults on other students or verbal assaults on teachers.
Stand-down meetingsA student who has been stood down or the parents can require the principal to arrange a stand-down meeting. The principal can also arrange a meeting if he or she wishes.
If as a result of the meeting the principal is satisfied that there were not reasonable grounds to stand the student down, the principal must withdraw the stand-down.
SuspensionsA student can also be suspended from school. The initial decision to suspend is made by the principal, but the matter then goes before the Board of Trustees.
The Board of Trustees must meet within seven school days to decide on what action to take, or within 10 calendar days if the student is suspended within seven school days of the end of the term. If the Board does not meet and make a decision by that time the suspension is automatically lifted.
Immediately after suspending a student, the principal must notify the Ministry of Education, the Board of Trustees and the parents, and must give the reasons for the decision.
When can a student be suspended?The grounds for a suspension are the same as for stand-downs, although suspensions are usually used for more serious disciplinary problems. Most suspensions are for drugs, continual disobedience or physical assaults on other students.
Students and parents must be given notice of the suspension meetingAs soon as practicable after the suspension, the Board of Trustees must send the student and the parents written notice of the time and place of the meeting.
Within 48 hours of the meeting the board must also give the student and parents, in writing:
- information on the procedure it follows at suspension meetings
- notification that the student and parents can attend and speak at the meeting
- a copy of the principal's report to the Board on the suspension and any other material that the principal or the Board will present at the meeting (excluding any parts of the report or the material that the Board would have the right to withhold if a Privacy Act request were made for them)
Ordinary principles of natural justice also require that the student and parents be informed in advance of all grounds for disciplinary action that the Board might rely on in making its decision, and that they have a chance to respond.
What happens at the suspension meeting?The student, the parents and their representatives all have the right to attend the Board of Trustees meeting and to speak. The right to have representatives means that you as a student or parent have the right to bring others to the meeting to support or represent you, such as a lawyer, family or whanau members, community workers, kaumatua or kuia.
At the meeting the principal will read out his or her report to the Board. If the Board or the principal raise any new matters that you have not been informed about before the meeting, you should ask for the meeting to be put off to a later date. The student and parents (or their representatives) have the right to put their side of the story, whether orally or in writing, and to make proposals about how the matter should be dealt with.
The Board can require the student, the parents, their representatives or the principal to leave the meeting while it makes its decision.
What action can the Board decide to take?At the suspension meeting, the Board can decide to do any of the following:
- Lifting the suspension - The Board can lift the suspension, with or without conditions.
- Extending the suspension - The Board can extend the suspension for a reasonable period. In doing this the Board must impose reasonable conditions aimed at getting the student to return to school. The principal must provide an appropriate educational programme for the student in order to facilitate his or her return to school and to minimise the educational disadvantages to the student. The Board must monitor the student's progress on the programme and must be given written reports by the principal. Copies of the reports must be made available to the student's parents and to the student.
- Exclusion (under 16) - If the student is under 16 and the most serious response is justified, the Board can exclude the student from the school and require him or her to be enrolled at another school.
- Expulsion (16 and over) - If the student is 16 or over, the Board can expel him or her. A student who is 16 or over should be warned that this is a possible course of action.
In making its decision, the Board must consider all the relevant circumstances of the suspension, and all the options available to it.
Exclusions (students under 16)Students under 16 are legally required to attend school, and therefore cannot be "expelled". However, the Board can decide to permanently "exclude" them from the particular school, in which case the principal is required to try to find the student another school. Other state schools can refuse to enrol the student.
If the principal is unable to arrange another school for the student within 10 days of the Board's decision, the principal must notify the Ministry of Education. The Ministry can
- arrange for and, if necessary, direct another state school to enrol the student, or
- if appropriate, lift the student's exclusion
- direct the parents to enrol the student in correspondence school
Expulsions (students 16 or over)A student who is 16 or over can be expelled, and in that case the principal is not required to find another school for the student.
However, the student is legally entitled to free education until he or she turns 19, and the Ministry of Education will help the student find another school.
Attendance at school during a stand-down or suspensionWhile a student is stood down or suspended, the student may not attend the school, except if
- the principal believes that the student should attend for guidance or counselling, or
- the parents request that the student be allowed to attend school (for example, to sit exams) and the principal thinks the request is reasonable
Guidance and counselling during a stand-down or suspensionWhen a student is stood down or suspended, the principal must ensure that the student receives guidance and counselling that is reasonable and practicable in all the circumstances.
Exclusion for health reasonsA state school principal may exclude a student from the school if the principal believes on reasonable grounds that the student
- is not clean enough to attend school, or
- may have an infectious disease
How can I challenge the school's decision?If you are a student or parent who is unhappy about a stand-down, suspension, or exclusion or expulsion, your possible courses of action include:
- asking the principal (in the case of a stand-down) or the Board (in the case of a suspension, exclusion or expulsion) to reverse the decision
- complaining to the Ministry of Education or the Education Review Office
- complaining to the Human Rights Commission if you think the action taken was discriminatory (see "Discrimination" in How to: Control and discipline of students in schools, and see also How to complain about discrimination to the Human Rights Commission).
- taking legal action in the High Court
Asking the principal or Board to reverse the decision is likely to be the most practical of these measures. Complaining to government agencies or taking court action will be relatively slow processes, and it is likely that the student will be settled in another school or even have left school by the time a final decision is made.
Because of the difficulty of challenging a decision once it is made, it is important that you be fully aware of your rights, as a student or parent, to be heard during the decision-making process and that you are familiar with the procedure that the principal or board is required to follow. In this way, you can fully exercise your ability to influence the outcome.
- If you are a student or a parent of a student faced with a suspension meeting you may wish to consider getting legal advice about the procedure that must be followed. This will ensure that your rights are not breached and will maximise your ability to influence the final decision.
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