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Education Law Articles - Discipline

 

 

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Must I involve the parents?

Does procedural fairness demand that schools get the parents involved in every disciplinary action? The issue has been litigated in New Zealand over recent years with the NZ Court of Appeal having the final word recently.

A statutory regime in NZ meant parents had to be involved after a suspension. But did they have to be contacted beforehand? The Court said: The context for the investigation and decision-making for a suspension is that those undertaking the exercise are teachers who are no doubt expert in teaching, but are not lawyers or police officers. Decisions will sometimes be required to be made with urgency, to prevent ongoing disruption or to protect the safety of other students. The level of seriousness of the alleged misconduct will vary from case to case…. And the principal and other teachers have other responsibilities.

The expectations of parents of students who do not misbehave are that teachers will be engaged in the education of those students. In this case, the student complement of the College is … over 1800.

The Court also noted that:

  1. Allegations may prove unfounded after questioning a student, in which case the parents will have been involved unnecessarily. In the absence of unsolicited admissions of misconduct, some investigation and questioning of students may well be necessary before the seriousness of the misconduct can be assessed.
  2. Questioning a student will allow teachers to assess the seriousness of misconduct to determine whether a suspension is even a possibility. It may be that the questioning will reveal that the behaviour is not as serious as suspected and that therefore suspension does not need to be considered as a disciplinary measure. Requiring parental involvement may lead to parents becoming involved unnecessarily when the conduct is ultimately found to be relatively trivial.
  3. If parents are unwilling or unavailable to attend, this may unduly hold up the investigation process. There needs to be sufficient leeway to allow matters to be dealt with swiftly where required. Imposing a requirement to involve parents before suspension may prevent such swift action.

Formulas don’t work when considering what procedural fairness demands. What is required is the fair treatment of students. Overbearing behaviour by a teacher undertaking an investigation would compromise the fairness of the process. Parental involvement may be desirable where that can be provided for without compromising the effectiveness and promptness of the investigation. Such involvement may reduce the risk of later challenge, or the likelihood of such a challenge succeeding. But a failure to involve parents in an otherwise fair process doesn’t breach the procedural fairness principles or compromise the basis of a decision to suspend a student.
 


Disciplining the Disabled

Eileen was a Special Needs Teacher at a Tasmanian school for the disabled. She had been employed by the Department of Education for 38 years and had worked at this school for about 18 years. Eileen admitted that in early 2008 she had applied "Nail Bitter" to one boy's lip during a violent episode to distract him and on two other occasions to the same boy in similar circumstances. Nail Bitter is a liquid with an unpleasant taste which is applied to fingers, around wounds and on toys to dissuade children from putting things into their mouths.

Eileen was dismissed for allegedly being in breach of the Department's Code of Conduct. Among other things, the Department said that, by administering "a foreign substance" to the boy, Eileen had failed in her duty of care responsibilities toward him. It also said that she had failed to comply with school-based guidelines and plans relating to the management and/or modification of student behaviour. It said that she had failed to treat him with respect and without harassment and victimisation. The Department also said that it took into consideration an assertion that a number of complaints had been made against Eileen for allegedly swearing at students in 2003. She vehemently denied this but said she may have sworn at the computer!

Eileen's unchallenged account of what happened was: (The boy) had one of his violent outbursts. These outbursts are characterized by extremely loud and constant profanity, stripping naked, attack with fingernail, fists, teeth; hair pulling, missile hurling, equipment destruction, and attention seeking by eating his own faeces if it is available. (The boy) has great stamina and is able to keep this up for at least 3 hours. The outbursts usually occur for no apparent reason endangering other students my teacher aides and myself.

(The boy) stripped off his clothes until naked and then ripped his wet disposable nappy in to pieces and was throwing it around the class room while, roaring obscene language … I attempted to distract him with a drink, offers of visiting another classroom and a towel to cover his private parts (all of which were violently rejected). … Verbal reprimand makes (the boy’s) behaviour worse, so I could only ignore him, but then he seized a passing student. …

I put myself between (the boy) and the other student so that he attacked me and he released his hold on the other student. An aide then helped me to disengage from his grasp and while he was attacking me. … The profanities and threatening behaviour continued unabated as I stood guard at a distance, my back to him so that he wouldn’t have my attention, to prevent another student being seized. I felt the Nail Biter in my pocket. I took the small brush out of the bottle, turned around and painted a drop on (the boy’s) bottom lip, while keeping my distance, with the intention of distracting him. It was a spur of the moment reaction and a last resort with the intention of distracting and thereby calming his behaviour, and in fact it did calm (the boy).

Nail Bitter was available over the counter in supermarkets. It contained a bitter but harmless ingredient. Eileen and other teachers testified of the difficulties encountered by the staff at the school in providing care and learning opportunities for the wide range of ages and the particular special needs of each individual student. It was not disputed that the environment in which the staff worked could be extremely challenging, or that students' behaviour could be unpredictable. Staff were punched, kicked, scratched, bitten, had hair pulled out of the head and had all manner of body fluids thrown on them.

The Tasmanian Industrial Commission found that Eileen administered Nail Bitter to the boy to distract him. She feared for his safety and the safety of others. Neither the Nail Bitter nor her actions caused any physical or emotional harm to the boy. She hadn't contravened any school-based guidelines. Rather, she always referred to positive reinforcement, no punishment and praise as her way of working. The Commission said: "Although the school ethos is positive reinforcement … it would be reasonable to expect at [the school], as in any school, that negative processes are utilised to modify behaviour with those students who understand correction. In my view, the applicant threatening the boy with Nail Bitter is no more failing to treat him with respect, no more harassment and no more victimisation than denying a bus ride he enjoyed. If I am wrong in this, the applicant’s action was certainly at the lower end of misdemeanours correctable by clear policy." It concluded: "The Department’s case is fraught with exaggeration, inaccuracies, unsubstantiated allegations and a blatant denial of natural justice. There is also, in my view, an unexplained demonstration of bias against the applicant." Eileen's termination was found to be unfair and she was reinstated.

Beware of jumping to conclusions!
 


What can be done about off campus cyber threats?

Aaron, a Year 8 student in the US, created an instant messaging icon depicting his teacher being shot using AOL Instant Messaging software at home. This software allows a person to communicate in real time with others and to create an icon that is sent along with the message. The icon was a small drawing of a pistol firing a bullet at a person’s head, with dots representing splattered blood and the words “Kill Mr VanderMolen”, Aaron’s English teacher. Aaron created this image a couple of weeks after his class was instructed that threats would not be tolerated by the school and would be treated as acts of violence. He sent messages to about 15 people: some were fellow students but none were teachers. A student showed the icon to Mr VanderMolen. The teacher found it distressing and told the principal who contacted the police, the district superintendent and Aaron’s parents.

Aaron expressed regret and was initially suspended for five days and allowed to return to school pending a hearing on further action. Mr Vander-Molen was allowed to stop teaching Aaron's class. A police investigator found that the icon was meant as a joke and that Aaron was not dangerous. A psychologist agreed. But the hearing officer concluded that “the icon was threatening and should not have been understood as a joke.” Even though the act took place outside of school, she found, “it was in violation of school rules and disrupted school operations by requiring special attention from school officials, replacement of the threatened teacher, and interviewing pupils during class time.” In response to the police investigator’s and psychologist’s findings, she said that intent was irrelevant and recommended Aaron be suspended for one semester, which the board of education approved. Aaron’s parents then went to court, arguing that the suspension violated Aaron’s free speech rights because the icon was not a “true threat” and thus was protected under the First Amendment. The US district court dismissed the suit, finding that the hearing officer had made a factual determination that the icon was a true threat, a conclusion the court shared.

That decision was affirmed on appeal but for different reasons. Following a 1969 US Supreme Court case of Tinker, which allows a school to discipline students if the speech “would materially and substantially disrupt the work and discipline of the school”, the court said that, because of the “potentially threatening content of the icon and the extensive distribution of it”, “it was reasonably foreseeable that the icon would come to the attention of school authorities and the teacher whom the icon depicted being shot.” The court was not concerned that the conduct took place off-campus, saying, “We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption with a school.”

Aaron’s conduct could lead to criminal proceedings against him if he had made the threat in Australia – for the relevant law, see David Ford’s paper on Cyber Bullying on Emil Ford’s website. Nevertheless, it is important that schools address these issues in their bullying policies. In particular, they should make it clear that the school will discipline students even if the threats are made out of school hours using personal equipment.
 


Discipline and procedural fairness

The NSW Education Act requires independent schools, as a condition of registration, to have discipline policies that are based on principles of procedural fairness. When an expelled student alleged that his school had policies that weren’t based on principles of procedural fairness and that he had not been afforded natural justice, the NSW Supreme Court said he was not entitled to natural justice because the school was last registered before the requirement was inserted in the Act. The school therefore had until it was next due for re-registration to get its policies in order. We understand that the Board of Studies takes the view that school discipline policies should already be based on principles of procedural fairness and good practice suggests that schools should ensure that they get their policies in order sooner than later.


ADHD in the USA

A second grade student diagnosed with ADHD sued the state education department and its officials, seeking damages for two separate disciplinary actions taken against him while attending an after-school program run by the state. In the first incident, a program worker allegedly “smacked” the student on the back of the head and then dragged him by his shirt across the school yard to the principal’s office for “acting up.” In the second incident, as punishment for fighting during lunch hour, the boy, along with several other students, was required to stand face forward with his nose touching an outside wall while wearing a sign that read “On Detention”. After continuing to “horse around”, the student and another boy were warned by the vice-principal that he would tape their heads to a tree if they kept misbehaving. After the boys were caught climbing the tree, their heads were taped to the tree with masking tape.

The court held that, given that both the vice-principal and the program worker had no knowledge of the boy's disability, they did not act solely on the basis of the disability or act with deliberate indifference when they imposed disciplinary measures on him. Therefore, their actions did not give rise to disability discrimination claims under US law. Without evidence that would establish actual or constructive knowledge of the likelihood of either disciplinary incident, state education officials could not be held liable.

Despite this result, we do not recommend that Australian teachers adopt similar disciplinary measures!
 


American Justice

Not surprisingly, litigation ensued when a school vice-principal in the USA taped an 8-year-old student's head to a tree for five minutes as a disciplinary measure when the young boy refused to stand still during "time out." The student was released after a fifth-grader told the vice-principal that she thought the method of discipline was inappropriate. The court agreed with the astute fifth-grader!
 


Must I involve the parents?

Does procedural fairness demand that schools get the parents involved in every disciplinary action? The issue has been litigated in New Zealand over recent years with the NZ Court of Appeal having the final word recently.

A statutory regime in NZ meant parents had to be involved after a suspension. But did they have to be contacted beforehand? The Court said: The context for the investigation and decision-making for a suspension is that those undertaking the exercise are teachers who are no doubt expert in teaching, but are not lawyers or police officers. Decisions will sometimes be required to be made with urgency, to prevent ongoing disruption or to protect the safety of other students. The level of seriousness of the alleged misconduct will vary from case to case…. And the principal and other teachers have other responsibilities. The expectations of parents of students who do not misbehave are that teachers will be engaged in the education of those students. In this case, the student complement of the College is … over 1800.

The Court also noted that:

  1. Allegations may prove unfounded after questioning a student, in which case the parents will have been involved unnecessarily. In the absence of unsolicited admissions of misconduct, some investigation and questioning of students may well be necessary before the seriousness of the misconduct can be assessed.
     
  2. Questioning a student will allow teachers to assess the seriousness of misconduct to determine whether a suspension is even a possibility. It may be that the questioning will reveal that the behaviour is not as serious as suspected and that therefore suspension does not need to be considered as a disciplinary measure. Requiring parental involvement may lead to parents becoming involved unnecessarily when the conduct is ultimately found to be relatively trivial.
     
  3. If parents are unwilling or unavailable to attend, this may unduly hold up the investigation process. There needs to be sufficient leeway to allow matters to be dealt with swiftly where required. Imposing a requirement to involve parents before suspension may prevent such swift action.
     

Formulas don’t work when considering what procedural fairness demands. What is required is the fair treatment of students. Overbearing behaviour by a teacher undertaking an investigation would compromise the fairness of the process. Parental involvement may be desirable where that can be provided for without compromising the effectiveness and promptness of the investigation. Such involvement may reduce the risk of later challenge, or the likelihood of such a challenge succeeding. But a failure to involve parents in an otherwise fair process doesn’t breach the procedural fairness principles or compromise the basis of a decision to suspend a student.
 


Reaching Beyond the Boundary?

Can schools discipline their students for internet activities done beyond the school boundary? This oft asked question continues to receive different answers. The NSW Department of Education, for example, looks for “a clear and close relationship between the school and the conduct of the student.”
 

A US court case recently upheld a school’s decision to discipline a student for a defamatory MySpace page made on the student’s home computer. Traditionally, cases dealing with this issue have grappled with whether a school can reach beyond their campus to regulate the activities of their students at home.

In this case the student had created a defamatory page on MySpace claiming a fellow student had contracted ‘herpes’ and invited other students to participate in the ridicule. Whilst the argument in this case focussed on the student’s right to free speech under the First Amendment, the reasoning remains an important source of guidance for Australian schools. Currently, it is clear that schools have the authority to discipline students for misconduct done on campus using school computers. However, the line remains blurred where students post abusive or threatening material on social media in their own time and with their own computer.

The US court said there was a sufficient connection between the posting of defamatory material on MySpace and the school’s responsibility to administer appropriate discipline in the school environment. It held that the MySpace page was created for fellow students to participate in and that therefore the subsequent disruption and disorder could reasonably be expected to reach the classroom. Schools have an interest in protecting the order, safety and well-being of their students where the conduct originates off campus. The Court suggested this test for characterising activities that originate beyond the school boundaries as ‘in-school’: where the speech is directed at school students, conceived by school students and acted upon by school students, it is ‘in-school’ speech. Based on the connection between the defamatory MySpace page and the disruptive impact it had on the classroom environment, the Court held that the school was authorised to discipline the student for her out-of-school activity.

In light of emerging social media like Facebook, MySpace and GooglePlus, all schools have an interest in monitoring the out-of-school activities of their students. Where such activity disrupts the order, safety and well-being of fellow students, the school should act accordingly with their disciplinary policy to ensure student safety and learning is not compromised.


Suspicionless Searches: in pockets

A high school student attended one of his classes for the day but was absent from others. When he was seen returning to the school campus, the assistant principal asked him to empty his pockets. The search revealed that the student was carrying 44 Ecstasy pills.

The student sought to suppress the drug evidence, arguing that the search violated the Constitutional prohibition against unreasonable searches and seizures. The Californian court disagreed.

This particular school has a policy that says that students who go “out of bounds” (off campus or to school parking lots and athletic areas) are subject to being searched.

The Court (by 2 to 1) upheld the search and the school’s policy. The majority opinion said:

Given the general application of the policy to all students engaged in a form of rule violation that can easily lend itself to the introduction of drugs or weapons into the school environment, we conclude that further individualized suspicion was not required.
 


Suspicionless Searches: on phones

An American high school student’s mobile phone was confiscated by school officials for violation of the school’s cell phone policy. The school’s policy required the phone to be confiscated and handed in to the school office.

Several school officials, including the football coach and school principal, searched through personal pictures the student had stored on his phone and turned the phone over to police. A police sergeant claimed that the pictures constituted “gang-related activity” and “indecent pictures”. The student was suspended, and then expelled following a disciplinary hearing.

The student went to court claiming that the search of the contents of his cell phone violated his Constitutional right to be free from unreasonable searches and seizures. Further, he claimed that his suspension for violating the gang activity policy based on the photos found on his cell phone violated his substantive due process rights.

 The court found that the actions of the staff were reasonable given that the student was caught using the phone in school, in open defiance of the policy, which could raise a reasonable suspicion that he might have violated other school rules, such as using the phone to cheat on a test or to contact another student. Emphasising that the court itself was unable to discover authority that the search was unlawful, it concluded that “a school teacher lacking legal training should not be forced to defend himself at trial for his split-second decision in this regard.”

In regard to the claim that the student’s expulsion was arbitrary, the Court acknowledged that while the school’s gang activity policy served the legitimate purpose of student safety and school security, it found that the facts did not appear to support a long term suspension/expulsion of the student because the photos were taken at home and not “on school property” or at “school sponsored events”. Therefore, the Court decided that a jury should resolve the issue.

Have a question about discipline?
Contact +61 2 9267 9800

 

 

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