CEIST CONFERENCE Current Legal Issues
David Ruddy BL
SEPTEMBER 30TH / OCTOBER 1st 2010
Admission/Participation policiesSection 29 appeals
Education Act 1998
Section 15(2)(d)
“A Board shall publish an admissions policy”
Education Welfare Act 2000section 19
(1)Refusal must be in accordance with the admissions policy
(2)School entitled to be supplied with all relevant information in application form
(3)BOM communicates decision within 21 days
Refusing admission in exceptional circumstancesThe student has special needs such that,
even with additional resources available from the DES, the school cannot meet such needs and/or provide the student with an appropriate education
Student poses unacceptable risk to other students/staff/school property
Section 29 Appeals against BOM decisions
Expulsion
Suspensions for 20 days or more
Refusal to enrol
Westmeath VEC v Sec General DES & Section 29 Appeals Committee High Court 2009
VEC school refuses enrolment for a “transfer” application
Right of appeal committee to over turn/rewrite admissions policy
St Mologas NS Balbriggan v Sec General DES & Section 29 Appeals Comm High Court 2009
Appeals Comm no rt to reverse decision of BoM
Comm not a placement agency
Function to ensure refusal was in accordance with valid enrolment policy
Mr&Mrs X v a Boys National school Equality Authority 2009
Boys school & co educ autistic unitSchool refuses to enrol non autistic girlAction for discrimination fails
Section 23(3) Education Welfare Act 2000
National Educational Welfare Board (NEWB) obliged to publish guidelines
Clarifies issues for schools
Codes of Behaviour/ The New Guidelines 2008
“ Discipline in a school is a matter for the Teachers, Principal, Chairperson of BOM, & the Board itself; not a matter for the courts whose function at most is to ensure that the disciplinary complaint was dealt with fairly”
Murtagh v BOM of St. Emer’s Primary School (High Court & Supreme Court) 1991
Responsibility of Board of Management (BOM)
Policy and procedures must be in place for suspensions/expulsions
Pupils/parents aware of the policy
All staff aware of fair procedures
Sanctions
Appropriate to age and development stage of pupil
Should not impact disproportionately on particular groupings i.e. members of the travelling community, special needs pupils and international pupils.
Importance of pupils’ understanding the purpose of sanctions
Special Educational Needs Pupils
The code should be flexible enough to allow for implementation of individual behavioural management plans but, in the case of gross misbehaviour or repeated instances of serious misbehaviour when the safety and duty of care to others is at issue, the code takes precedence.
Mrs A (on behalf of her son B) v A Boys National school Equality Authority 2009
Parents of autistic boy fail to prove discrimination by school in relation to discipline
Applying sanctions to misbehaviour outside school
Student A and Student B V
A Dublin Secondary School High Court 1999
must be a clear connection with the school and a demonstrable impact on it’s work before code of behaviour applies
The period of suspension
Guidelines recommend the following options/possibilities for BoMPrincipal - 3 days
Principal - 5 days (approval of Chairperson)
BoM should put a ceiling of 10 days max in relation to particularly serious incident
Grounds for suspension
Proportionate response to behaviour that is causing concern
Seriously detrimental effect on education of other students
Threat to safety
One single incident of serious misbehaviour may be grounds for suspension
Forms of suspension
Immediate suspensionAutomatic suspensionRolling suspension XInformal or unacknowledged
suspension/voluntary withdrawal XOpen-ended suspension X
Fair procedures based on the principles of natural justice
(1) The right to be heardRt to know what was alleged misbehaviour Rt to respondIf possibility of serious sanction, rt to be heard
by BoMAbsence of bias
State (Smullen & Smullen)
VDuffy
1980 High CourtNo automatic right to legal representation
at BOM meetings
Expulsion
Authority to expel should be reserved for the BOM
This authority should not be delegatedSeek assistance of support agencies ,
NEWB,NEPSLegal advice
Grounds for expulsion
Behaviour is persistent cause of significant disruption to the learning of others or to the teaching process
Continued presence of pupil constitutes a real and significant threat to safety
Pupil responsible for serious damage to property
Automatic/expulsion for first offence
• BOM can impose automatic expulsion for certain prescribed behaviours –Sexual assault
–Supplying illegal drugs to other pupils in the school
–Actual violence or physical assault
–Serious threat of violence against another pupil or member of staff
Expulsion
"The Shorts Case" Timothy O Donovan
-V-BOM of De la Salle College Wicklow
& (Section 29 Appeal Committee) High Court Jan 2009
Judge Hedigan
School Discriminates against pupil
"The haircut case“
Mary Knott (on behalf of her son David Knott)
VDunmore Community College
January 2009Equality Officer Decision
Kirpan Case
Total ban on 12 yr old boy wearing kirpan
The school violated an individual’s freedom of religion.
Supreme Court of Canada
Mulvey (a minor) v Mc Donagh High Court 2004
Adopted DES guidelines i.e. bullying definition must be ;
repeated ongoing sustained
Cross Referencing
The code of behaviour should not be seen as a stand-alone document
Anti-bullying policy must be part of codeHealth and safety statementAdmission/enrolment policy
Time Frame
It is expected that the process of audit and review will be completed by September 2010
Principal’s role is to lead the audit and review and ensure implementation of the code
Separated parent challenges School policy on p/t meetings
A v A Primary School
Equality Tribunal 2009
Circular 60/99
Dismissal /suspension of teachers/principal teachers
Section 24(3) Education Act (1998)
DES Circular 60/2009
TEACHERS PRINCIPALS
Professional Competence
Issues
Not Teaching
Class
Other Disciplinary
Issues
Late
Professional Competence
Issues (Teaching only)
Other Disciplinary
Issues (non teaching
activity)
All Ancillary Staff/Admin
Principals only
School Principal dismissedGertie Mc Nerney vBom of St.Patrick’s Primary schoolDromard,Moyne.co.LongfordEmployment Appeals Tribunal 2009€55,000 awarded
HAND V LUDLOW (High Court )2009
Removal of prefab from schoolMaintaining false recordsManipulation of enrolment figures
School principal fails to halt disciplinary hearing in relation to above allegations
HSE V Information Commissioner
(High Court) 2008
HSE must disclose confidential information given by teachers to social workers