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In a tangle about long hair? Lessons from NZ for Australian Schools

2/07/14
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You may have heard rumblings across the ditch about Lucan, a 16 year old student whose refusal to cut his hair resulted in his suspension from a New Zealand private school.  The High Court of New Zealand (Court) recently handed down its judgment in this matter after Lucan, with his parents, decided to take court action to appeal his suspension. If you are interested you can read the decision here.

Lucan's case should provoke conversation amongst Australian schools and cause them to reflect upon their own disciplinary and suspension policies.

The important facts

Lucan is a student at St John's College (College), a non-government school. His hair, which can be seen let down here, and tied up here, is long and curly. Lucan describes himself as a typical teenager and the College does not dispute a description of him being a 'nice young man'. In fact, Lucan received the Bronze Medal from the Royal Humane Society of New Zealand for his part in the rescue of two girls at a New Zealand beach in 2013.

The College's rule on hair requires that the students' uniform includes 'hair that is short, tidy, and of natural colour. Hair must be off the collar and out of the eyes.'

On 5 May 2014, Mr Melloy became Principal of St John's college. He was concerned about members of the rugby team who had 'untidy and long hair'. On 15 May, Mr Melloy spoke to Lucan about his hair. Lucan stated that if he had to cut his hair he would leave the College. Six days later, a teacher dismissed Lucan from class because of his hair. A meeting between Lucan's parents and the College on 22 May failed to resolve the issue and Mr Melloy suspended Lucan for disobedience. The School Board's Disciplinary Committee (Disciplinary Committee) also subsequently met and confirmed the suspension, but allowed Lucan the option of returning to school on the condition that he cut his hair.

Lucan refused to comply with the condition of his return to the College as he believed that he could tie his hair back in a bun to comply with the rule. His hair did not pose an issue in any of his classes.

Despite making inquiries, Lucan's family could not find alternative schooling for him due to other schools being full (not because of the length of his hair).  Attempts by Lucan's father to get an independent barrister to mediate a solution also failed.

The issues for the Court

Justice Collins found in favour of Lucan.  In doing so His Honour made three key findings:

  • the College's various decisions to suspend Lucan were unlawful because the decisions were not based on 'reasonable grounds', as required by the Education Act 1989 (NZ) (Act);
  • the Disciplinary Committee's terms for Lucan's return from suspension were unreasonable; and
  • the School's hair rule was invalid because it was too uncertain.

His Honour provided some interesting reasoning when handing down these findings.

'Reasonable grounds'

His Honour found that neither Mr Melloy nor the Disciplinary Committee had acted fairly when suspending Lucan.  When examining the 'reasonableness' of their actions His Honour found the following:

  • Mr Molloy's punishment was disproportionate to Lucan's actions - there were other disciplinary actions he could have taken which were less drastic than suspension;
  • School disciplinary penalties should minimise the disruption to a student's attendance at school - a factor overlooked by Mr Molloy;
  • The authority to suspend a student under the Act is contingent on the need to protect other students from behaviour which constitutes a harmful or dangerous example to other students - Lucan's behaviour did not meet this threshold; and
  • The Disciplinary Committee made the same errors as Mr Molloy and in addition, failed to properly consider if Lucan's offer to tie his hair back would have complied with the hair rule.  Asking him to cut his hair imposed a condition that was well beyond the requirements of the hair rule.

Invalid hair rule

His Honour found the hair rule to be invalid because of its imprecision. Lucan's case showed that the meaning of 'short' was open to different interpretations so the policy could easily be infringed by parents, teachers and students.

Lessons for Schools in Australia

This case is interesting for Australian schools as it illustrates a way in which the law, in extreme cases, can play a part in school processes.  Justice Collins noted that 'traditionally the Court has been hesitant to enter the fray of school disciplinary proceedings' but that recently courts have been more willing 'to ensure the rights of a student are given proper weight when revisiting school disciplinary decisions'. This New Zealand trend could become influential in Australia.

Australian schools can mitigate against the risk that a court will become involved in its disciplinary processes by ensuring that its policies are clearly drafted and capable of understanding by the school community.

Having disciplinary procedures in place which are fair and reasonable in relation to the offensive conduct of a student will also reduce the possibility of a student resorting to legal proceedings to defend his or her rights.

In most States and Territories, Education Departments mandate that Government School disciplinary policies (which must be followed when making a decision to punish, suspend or expel a student) specify a right of 'procedural fairness'. In essence, this means that schools must make disciplinary decisions in a fair and reasonable manner. This means, for instance, that:

  • rules must be certain enough for everyone to understand (and not just at the discretion of teachers or the principal);
  • where there is an allegation against a student, the student has the right to know the specifics of the allegation, to be heard about it, and to respond to it; and
  • decision-makers must be, and appear to be, impartial.

A postscript

Following the decision, the College principal stated that 'the Board of Trustees are (sic) taking time to consider the judgment made by Justice Collins in terms of its impact, both on our school and on other schools'.

Lucan is continuing to attend the College, having previously been allowed to return whilst the matter was in Court. It's a shame, perhaps, he could not have put his long locks to other uses.

What is your school's disciplinary policy like?  Do you agree with the New Zealand High Court's decision?

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About the Author

CompliSpace

CompliSpace is Ideagen’s SaaS-enabled solution that helps organisations in highly-regulated industries meet their governance, risk, compliance and policy management obligations.

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