Ye Lin Ko, content contributor

All New Zealand state and state-integrated schools have a board of trustees.[1] The members of the board, which include individuals elected from the school’s community, play a crucial role in managing and organising the school. This involves setting the appropriate educational goals and strategic direction of the school. The board works closely with the school’s stakeholders to ensure that the school provides a safe environment and high quality education for all its students. They also set and enforce school rules, which students must abide by.Unfortunately, the well-meaning parents who join these boards too often have minimal knowledge about the educational needs of students and education policy and law. The rationale for electing these parents is that the board should reflect the local community.“By having parents who live in the local community, they are best [at] understanding local community values,” said YouthLaw senior solicitor Jen Puah, who also noted that electing the board ensures that “the local community is engaged with the education of youth in the area.”[2] Given their lack of expertise in law, unfair outcomes for students may sometimes regrettably ensue when the boards overstep their powers. In particular, there have been failures by the boards to comply with s 13 of the Education Act 1989, which requires them to adhere to the processes of natural justice and due process.[3]For Ms Puah, this lack of knowledge about the board’s legal obligations is particularly significant when students face disciplinary action before it. She points out that “if the board is not equipped with the knowledge and skills required to conduct a meeting in accordance with the rules set out in the Education Act, this can mean the student is not given a fair hearing and may be removed from education on erroneous grounds.”[4] In her experience, Ms Puah says situations of this type “stem from failure to understand legal obligations when making a decision under Section 14 of the Education Act, in particular, requirements to adhere to the processes of natural justice and due process.” For instance, this may include failing to allow the student to be heard and not considering all relevant evidence independently of the principal.[5]This should not be understood as an indictment of the good will of the parents on boards. Rather, the concern is that the law entrusts well-meaning people with a task they may not be qualified to do. The Education Act 1989 does not outline any pre-requisite training or qualifications for a parent to be a board member. Rather, the only requirement of a parent representative as a board member is to be a parent of a student enrolled full-time at the school.[6] Therefore, it is possible for parent board members to have no experience managing staff, budgets, or entities the size of a school. Despite this, s 75(2) of the Education Act delegates quite a lot of power to the board of trustees, giving the board “complete discretion” to control the management of the school “as it thinks fit.”[7] However, this “complete discretion” does not allow the boards to act outside its powers by making decisions contrary to the Education Act, the Bill of Rights Act or the Human Rights Act.[8]An example of this problem is the recent controversy surrounding Bible Studies at schools. For example, parents have the right to decide whether or not to opt their child out of Bible Studies by law.[9]  However, there have been incidents where the boards made Bible Studies compulsory in non-Christian public schools. Children have been placed in religious studies without parents being notified or asked for permission, with the Bible teacher claiming that the classes were “history lessons” as the Bible was “factually correct.”[10] Additionally, there have been reports of lollies and prizes being used in Bible Studies, which may reinforce the feeling of exclusion for students who opt out. Even worse, there have been reports that those opting out were treated in a punitive manner, which included the students being sent to pick up rubbish or do the dishes.[11]At first sight, this is a violation of s 19 of the New Zealand Bill of Rights Act 1990 which prohibits public bodies (such as schools) from discriminating on the basis of religious belief. The law states that students should not be discriminated against if they choose not to participate in religious observances, and they must ensure these students are treated with dignity.[12] Also, allowing such practices may arguably come close to violating the prohibition on any student at a state school being required to attend or take part in religious instruction or observances in s 79(1) of the Education Act 1964.A similar problem arises with the board’s quasi-judicial role in disciplinary hearings. This is a very important exercise of the board’s power: if a student is expelled, stood down or suspended, there may be serious consequences for the future of that student. A recent high profile case on this issue is Battison v Melloy.[13] Battison took his school principal and the St John’s College Board of Trustees to the High Court for suspending him for having long hair, which contravened a school “hair-rule” that required students to have short and tidy hair. Although Battison offered to tie his hair up so it would appear shorter, this was not considered an appropriate solution. Consequentially, he was suspended. Considering Battison’s application for judicial review of the board’s decision, the High Court noted that the Education Act 1989 does allow a board to make rules they think may be necessary for the control and management of the school. However, the Court held that boards are only entitled to suspend a student for breaking a rule if it is reasonably satisfied that the student’s conduct is a dangerous example to others, or is so serious that it impacts the welfare of other students that no alternative outcome is appropriate.[14] Not considering this standard had been met, the High Court held the suspension was unlawful.[15]Schools need to strike a careful balance between maintaining discipline and order and their obligation to provide students with their basic human right to education (which is codified in many international agreement to which New Zealand is a party).[16] Under s 13 of the Education Act, the board must “investigate all possible options to try to retain a student in school where possible.”[17] This is especially important because, as Ms Puah notes, “education is the “silver bullet” in crime prevention as young people remain engaged in society.”[18] It is also important that the board reaches fair and principled decisions as there is no further right of appeal to an adverse decision by the board. The only recourse is to ask the board to reconsider, complain to the ombudsman who can only issue a recommendation, or take the expensive course of seeking judicial review.[19] This last option is not a realistic option for many families, and that is especially the case for those from the socio-economically deprived backgrounds where education is likely to have the greatest positive influence on the young person’s outcomes.Whatever avenue is pursued, the student will be forced to squander valuable time at home, not at school. Given these consequences, it is reasonable to expect that disciplinary action is proportionate to the student’s alleged misconduct, that they are treated fairly, and that the board demonstrates the restraint in imposing penalties of suspension as required by the Act. Whilst boards should have the ability to impose appropriate discipline for misconduct in order to help provide an environment in which other students can achieve, they should follow the principles of natural justice in a manner consistent with the Education Act to protect the rights of students subject to the disciplinary process.Progress can be made towards striking this balance by implementing uniform processes when investigating and disciplining students. In order to best protect the right of students whilst balancing the school’s need to maintain discipline, schools should be guided on how to conduct a fair investigation and should clearly define what will constitute gross misconduct warranting suspension; the Ministry of Education or some other governmental body with relevant expertise should be tasked with ensuring these processes are uniformly implemented and enforced.[20]A first practical step in this direction could involve codifying in education law the need for compulsory training for those elected to the board. Training could be as simple as reading a manual or watching a webinar — small measures which Ms Puah believes will make a big difference in how these processes are conducted.[21] It may also be beneficial to have at least one professional trustee, such as a lawyer, who is aware of due process issues as well as education law.[22] Alternatively, an independent body with an appellate or review jurisdiction over disciplinary hearings could be established. A separate body that has the required legal training would ideally arrive at more principled and fair decisions and would be better able to strike a balance.[23]Ms Puah argues that the absence of such a body is a breach of New Zealand’s international obligations. “The United Nations Special rapporteur on the right to education has stated that the right to education needs to be capable of being enforced and reviewed by an independent tribunal if it is infringed. Arguably not having an independent tribunal means that the right is not capable of enforcement or check by an independent process meaning we are in breach of international law obligations.”[24]Ultimately, a school and its board members have the obligation to ensure that the school is run safely and efficiently. However, it is crucial for them to balance between discipline at school whilst protecting the rights of students. This will allow the rights of students to education to be better protected - both those students subject to the disciplinary process and their peers – ensuring a better future for all.

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[1] Ministry of Education “Board of Trustees” Education Counts <https://www.educationcounts.govt.nz>[2] Interview with Jen Puah, YouthLaw Senior Solicitor (the author, Equal Justice Project, 25 August 2015). Email exchange retained by EJP.[3] Interview with Jen Puah, YouthLaw Senior Solicitor.[4] Interview with Jen Puah, YouthLaw Senior Solicitor.[5] Interview with Jen Puah, YouthLaw Senior Solicitor.[6] Education Act 1964, s 96[7] Education Act 1964, s 75(2)[8] Youth Law Aotearoa “Rights at school” <http://www.youthlaw.co.nz>.[9] Education Act 1964, s 79[10] Laura Walters “Bible lessons lead to court” Sunday Star Times (online ed, New Zealand, 22 February 2015) <www.stuff.co.nz>[11] Rachael Goldsmith “Is time up for Bible in Schools? What are your rights as a parent?” (23 February 2015) The Daily Blog <www.thedailyblog.co.nz>[12] Human Rights Commission “Human Rights Commission’s position on religion in schools” (press release, 21 March 2014)[13] Battison v Melloy [2014] NZHC 1462.[14] Beattie Rickman Legal “Judicial review – Lucan Battison case” (August 2014) <http://brlegal.co.nz >.[15] Battison v Melloy, above n 15.[16] Interview with Jen Puah, YouthLaw Senior Solicitor, above n 2.[17] Interview with Jen Puah, YouthLaw Senior Solicitor.[18] Interview with Jen Puah, YouthLaw Senior Solicitor.[19] Interview with Jen Puah, YouthLaw Senior Solicitor.[20] Interview with Jen Puah, YouthLaw Senior Solicitor.[21] Interview with Jen Puah, YouthLaw Senior Solicitor.[22] Interview with Jen Puah, YouthLaw Senior Solicitor, above n 2.[23] Interview with Jen Puah, YouthLaw Senior Solicitor.[24] Interview with Jen Puah, YouthLaw Senior Solicitor.

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