Schools, Code of Behaviour, Constitutional & Human Rights

cojobt

Hi,

Do codes of conduct used by schools these days effectively deny students their access to education, and their right to education?

Most schools in the country these days get students to sign a Code of Conduct as a means of protecting themselves in terms of legal matters, as part of the school's discipline policy. Some schools will then get students who have breached the code of conduct to sign a new, more severe contract, in which the student agrees that if there are any further breaches of the code of conduct, the student will be expelled.

Would this contract survive a legal challenge on the grounds that the young person is effectively signing away their access to education, and therefore infringing upon their constitutional right to education? Should a 12 or 13 year old student be forced to sign such a document?

I know of one situation where a first year secondary school student was involved in an incident which led to the school getting him and his parents to sign a new, tougher behaviour contract. The student was terrified, the parents were ashamed, so naturally they signed it.

One year later, the same student got involved in another serious breach of the code of conduct, along with a number of other students.

The principal recommended the boy be expelled on the basis that he broke the new contract. The Board of Management upheld the principal's decision. The boy has now been expelled.

The parents have the right to appeal to the Board again, and they can also appeal via Section 29 of the Education Act.

However, they have recently been informed by a local Welfare officer that once a student is expelled, no other schools in the area will accept them, and they are usually left with no alternative but to go to YouthReach. In this case, the individual is too young (13) to go to YouthReach, and the parents would have to pay for him to be tutored privately. They can't afford this. In fact, they could barely afford to send him to a new school considering the cost of transport, new school uniform and books.

Effectively, the student and his parents waived their right to education, or at least their access to education, by signing the new contract.

Is this legal and binding?

I feel that it should not be legally binding. Whilst I accept and understand that schools must use these mechanisms to protect themselves and to maintain discipline, they can be abused. In this case, for a number of reasons which I won't go into publically, I believe the school in question has abused the system and expelled a student unnecessarily.

If replying, please avoid discussing whether or not the student deserved to be expelled. That's not the issue, and for obvious reasons I won't be drawn on the particulars of the situation.

MarkAnthony

Is the issue the code of conduct though? It seems the issue is, perhaps, one of form over substance. If we simply remove the code of conduct from the equation would grounds for the expulsion still exist? Would the school still not be within their rights to expel the child? If we take that course of events would we then be in a position where the child/parents could claim that they were not on notice? There would, it seems to me, certainly be a breach of the statutory duty imposed by the Education (Welfare) Act 2000.

The issue with then no other school taking the child seems to me to to a separate and very harsh issue. Furthermore there being no other facilities for the child also seems harsh. That said is the right to education not limited to a primary education only? (Thinking Sinnott(1) case - although this is a double edged sword given the duty ends at 18.)

I welcome enlightenment on any of the points above. I can't speak to whether the code of conduct sections being constitutional or the agreement binding, I just wonder if that is an issue in the first place.

EDIT: I'm rereading Sinnot here and I'm wondering if there is an element of homework here, there seems to be quite a few parallels OP Very interesting topic however so I think I'll persevere perhaps dropping you a few sources as I go.

(1) [2001] 2 I.R. 545

Manach

Rights are rarely absolute. Many rulings put limits on them and balance the individuals against the wider group and community. There is social good in having a harmonious and functioning school sector.

It can be argued that having reasonably and clear school codes of behaviour aids in this by giving an official notice to parents and pupils. Courts can and do step in where school authorities have over-restricted conducts (eg fairly recent US example in Newsom ex rel. Newsom v. Albemarle County School Board) so there are safeguards in place. Thus this civil contract between the parties would likely be seen as part of the legitimate duty of care owed to all pupils and as well as the school authorities confirming that they can act in loco parentis over the pupil in their goals to educate and to ensure the safety of their charges.

Expulsion is a harsh punishment and should only be a last resort. But the needs of non-disruptive students also need to be safeguarded thus parents signing these and pupils adhering to such should be upheld under general policy grounds.

TheQuietFella

What about the rights of the other class members to an education that I assume this student is disrupting?

coylemj

I see a parallel here between what happens in the criminal courts and that school.

Say I assault someone, I'm brought to court and I get a suspended sentence. That puts me in a similar situation to that pupil after his first offence i.e. he and I are now subject to a more stringent set of rules than before and the bar is lowered as to what is considered 'acceptable' behaviour for a period into the future, relative to what applied beforehand.

So, in my case, if I commit what would be considered a minor offence, the suspended sentence can be activated after an event which in other circumstances (i.e. someone with a clean sheet) would merit a simple slap on the wrist but because the bar has been lowered for me, off to the clink with me.

Hence I can't see that there is anything particularly unjust about the system that dealt with the pupil in the way outlined by the OP.

He broke the rules, got a warning, he and his parents were informed of the possible consequences of a repeat offence, he committed another offence so he was expelled. Without any more details (which I can see we shouldn't ask for), I can't see any inherent injustice or lack of transparency or want of fair procedure.

cojobt

Without wanting to focus on the individual too much, it might be helpful to offer some "hypotheticals", without being too specific.

The individual in this case is not a troublesome student. He plays a number of sports for local clubs, and positive character references from coaches and managers were presented to the Board.

The incidents he was involved in were both of the extreme variety. However the school does not have any other record of misbehaviour for this student. He is not a repeat offender, in the common understanding of the term.

In addition, there were reportedly a dozen students involved in the recent incident. A few of them owned up to their involvement, all of whom were suspended, but two boys were expelled. The other student who was expelled has been suspended from the school in excess of 10 times.

It might be worth pointing that the school had not been effective in outlawing the 'game' which the boys were playing. Also, the area of the school where it occurred was not supervised although students were allowed to congregate there, no teachers witnessed the event, and there is no CCTV footage either.

cojobt

TheQuietFella wrote: »

What about the rights of the other class members to an education that I assume this student is disrupting?

That's not quite applicable or relevant in this particular situation.

cojobt

coylemj wrote: »

I see a parallel here between what happens in the criminal courts and that school.

Say I assault someone, I'm brought to court and I get a suspended sentence. That puts me in a similar situation to that pupil after his first offence i.e. he and I are now subject to a more stringent set of rules than before and the bar is lowered as to what is considered 'acceptable' behaviour for a period into the future, relative to what applied beforehand.

So, in my case, if I commit what would be considered a minor offence, the suspended sentence can be activated after an event which in other circumstances (i.e. someone with a clean sheet) would merit a simple slap on the wrist but because the bar has been lowered for me, off to the clink with me.

Hence I can't see that there is anything particularly unjust about the system that dealt with the pupil in the way outlined by the OP.

He broke the rules, got a warning, he and his parents were informed of the possible consequences of a repeat offence, he committed another offence so he was expelled. Without any more details (which I can see we shouldn't ask for), I can't see any inherent injustice or lack of transparency or want of fair procedure.

Yes, fair analysis of the situation, and I imagine that's how most schools who employ these mechanisms see it too.

However, we're discussing a 12 year old boy here. Your analogy is appropriate, but I still have an issue with the idea of a 12 year old signing a document which has the potential to preclude him from the education as his peers.

coylemj

cojobt wrote: »

.... I still have an issue with the idea of a 12 year old signing a document which has the potential to preclude him from the education as his peers.

What would have happened if he and/or his parents had refused to sign the newer 'more severe contract' (your term) after the first offence?

MarkAnthony

cojobt wrote: »

Yes, fair analysis of the situation, and I imagine that's how most schools who employ these mechanisms see it too.

However, we're discussing a 12 year old boy here. Your analogy is appropriate, but I still have an issue with the idea of a 12 year old signing a document which has the potential to preclude him from the education as his peers.

If we take the analogy further perhaps we can tease out that particular issue. The age for criminal responsibility in Ireland is 12 years of age, although it should be noted the DPP have final say until a child is 14.

A child can not enter into a contract either save for necessaries. I don't think signing a document is really inappropriate, especially given two factors:

(i) expulsions happened prior to the introduction of the 2000 act;
(ii) the parents are also involved and bear a measure of responsibility in ensuring their child's behaviour.

Assuming the parents can't do that for what ever reason then we fall back on whether the child has been denied their basic constitutional right of a free primary education. Further education is prefaced on the common good so I would respectfully submit that the rights of non-disruptive children is at issue here, although I realise I'm twisting the words of 42.2.

The Education (Welfare) Act allows for education to be provided, allowing for differing capacities. One could further the argument that due to a child's behaviour they do not have the capacity to receive further education beyond that of primary education (which is guaranteed). Although there is a counter-argument that such behaviour is basic primary education and therefore under Sinnot must be provided until the child is 18, that would not, however, require the child be allowed to attend main stream school.

Assuming the appeals process is exhausted could the board be subject to judicial review? If so would this not be the appropriate method to further the case?

Little CuChulainn

In the opening post example I would imagine it is not the Board that are restricting the childs education but the other schools failing to take him in.

johnnyskeleton

cojobt wrote: »

That's not quite applicable or relevant in this particular situation.

It is an important illustration though. Your question is on constitutional rights not the merits of the pacticular actions. If the right to education meant that i must be given education no matter what, it would be impossible to deal with unruly kids. Therefore there must be practical limits to what the state must do to provide education. For primary school the state is only obliged to provide a reasonable level of accommodation, for secondary school there is no constitutional right to education.

Peregrinus

cojobt wrote: »

Yes, fair analysis of the situation, and I imagine that's how most schools who employ these mechanisms see it too.

However, we're discussing a 12 year old boy here. Your analogy is appropriate, but I still have an issue with the idea of a 12 year old signing a document which has the potential to preclude him from the education as his peers.

The signing of the document is not that big a deal. The purpose of getting him to sign the document is to help bring home to him the content of the school rules and the importance the school attaches to observing those rules. The school's ability to discipline him for breaching the rules does not depend on whether he signed the document or not, and the question of whether expulsion is a reasonable disciplinary measure in the circumstances also does not depend on whether he signed the document or not.

Afroshack

cojobt wrote: »

Without wanting to focus on the individual too much, it might be helpful to offer some "hypotheticals", without being too specific.

The individual in this case is not a troublesome student. He plays a number of sports for local clubs, and positive character references from coaches and managers were presented to the Board.

The incidents he was involved in were both of the extreme variety. However the school does not have any other record of misbehaviour for this student. He is not a repeat offender, in the common understanding of the term.

In addition, there were reportedly a dozen students involved in the recent incident. A few of them owned up to their involvement, all of whom were suspended, but two boys were expelled. The other student who was expelled has been suspended from the school in excess of 10 times.

It might be worth pointing that the school had not been effective in outlawing the 'game' which the boys were playing. Also, the area of the school where it occurred was not supervised although students were allowed to congregate there, no teachers witnessed the event, and there is no CCTV footage either.

Okay, there are a number of issues at play here. You claim the child is not a troublesome student. He has been expelled and no other school will accept him. As a teacher, I know how difficult it is to expel a student and I can count of several dozen I know who should have been expelled a loooong time ago. Chances are, he is a troublesome student or he wouldn't have been expelled. Kids don't get expelled for throwing paper airplanes.

Secondly, being a member of a sports team doesn't account for messing in school. He chose to misbehave, so what does it matter what he does during sports? It's irrelevant.
Also, it's not up to the school to ''outlaw'' the game. If the student knew it was a dangerous or inappropriate game, then perhaps he needs to take responsibility for his behaviour? You talk a lot of rights to an education but disruptive students regularly cost many other kids the chance of having a great education, so personally I'm glad that someone has been expelled rather than carrying on and messing.