There are reports from New Zealand of a disturbing trend that all Australian schools should be aware of.
3 News in New Zealand has reported that cash-strapped schools are increasingly spending money to defend legal battles with parents over matters including parental upset that their children weren’t selected for extra-curricular teams.
Background
We’ve previously reported on instances of litigation in New Zealand involving parents seeking relief from the courts for decisions made by schools which adversely affected their children.
There was Lucan from St John’s College who was suspended after he refused to cut his hair and two young rowers from St Bede’s College who were dropped from the school team after an overzealous airport adventure.
In both these cases, the courts were asked to intervene in a school’s disciplinary process.
As a result, suggestions were made that a school disciplinary appeals tribunal should be established to avoid school-related disputes progressing to the courts.
New cases
Since those incidents, which attracted signficant media attention, there have been further reports of parents dissatisfied with school team and event selection decisions engaging lawyers and taking their cases to court.
The cases involve team selections for rugby sides, debating teams and musicals, not to mention more rowing cases.
Some schools have apparently even delayed naming rugby firsts sides due to threats from parents upset over selections.
Collective action required
The Secondary Principals’ Association of New Zealand (SPANZ), which represents state and independent school principals, is now working with the Ministry of Education to help principals deal with the increasing threats.
SPANZ President, Sandy Pasley, is quoted by 3 News as saying that ‘it’s very sad that schools have to look at advice for injunctions that parents might take.’
She explained that the cost of fighting litigious parents in court is paid for out of the school’s operating budget, meaning less is being spent on educating the students and supporting staff.
Ms Pasley said that while schools want to provide many different sporting and cultural opportunities to fully develop each student, it is a privilege and not a right that students have these co-curricular opportunities.
In her President’s Comment, Ms Pasley said that in relation to the St Bede’s rowing incident:
- she finds it extraordinary that the parents of the two boys did not support the school when their sons behaved badly. Schools rely on support from parents to make sure students learn they have to take responsibility for their actions. Students will not learn valuable lessons if parents continue to excuse them and protect them against the consequences of their actions; and
- that SPANZ Executive and lawyer, Patrick Walsh, is working with the Ministry of Education so that schools can have good advice when in situations such as St Bede’s College arise.
Ms Pasley stated that “St Bede’s was within their rights insisting that students behave appropriately and if they could not, that the privilege be withdrawn.”
Legal action sets a dangerous precedent
The rowing debacle at St Bede’s, which saw the rowers’ parents seek a (successful) court injunction to prevent their sons from being dropped from the rowing team, has set a dangerous precedent in New Zealand. According to Mr Walsh, there is concern that the St Bede’s case has given parents a legal right to seek injunctions on matters related to co-curricular activities that wasn’t there before.
Mr Walsh said that courts had previously allowed principals and trustees to make decisions in schools because they accepted that boards were the elected representatives of the community.
SPANZ President Ms Pasley also voiced her concerns about unwarranted interference by the courts into decisions about hair length, personal grooming, uniform and extra-curricular activities.
What role should the Court play in student disciplinary action?
Despite these cases being heard in New Zealand, the legal principles apply similarly to Australia. Although court cases of the St Bede’s type are particularly rare, mainly because they are based on a set of facts which involve urgent timing considerations, the other scenarios involving school team selections and the enforcement of a dress code are based on routine school decisions that are made reguluarly, but which are now are suddenly at risk of external scrutiny by the courts.
As we’ve explained in our previous articles, whether such cases would arise in Australia depends on whether a non-government school is required by law to afford procedural fairness to a student. Given that this is a matter for each State or Territory, there is no clear answer.
Stated generally, procedural fairness requires that:
- the nature of the complaint of accusation is made clear to the student;
- the school should ensure that ‘both sides of the story’ are heard by the decision maker;
- the student is given a chance to present the student’s case;
- that the decision is made by an unbiased decision-maker; and
- the decision-maker acts reasonably
In addition to ensuring that, as a matter of good practice, schools should afford their students procedural fairness, schools should also ensure that they have an adequate complaints handling program in place to minimise the risk of parental dissatisfaction escalating to court action. Our articles on the importance of schools implementing effective complaints handling processes provide guidance on how to structure and implement a complaints handling program.
While not all complaints will have sufficient grounds to instigate legal action, for those that do, the reputational and financial damage to schools can be disastrous.
