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