CEIST CONFERENCE Current Legal Issues David Ruddy BL SEPTEMBER 30 TH / OCTOBER 1 st 2010

Admission/Participation policies Section 29 appeals Education Act 1998 Section 15(2)(d) “A Board shall publish an admissions policy”

Education Welfare Act 2000 section 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 circumstances The 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 unit School refuses to enrol non autistic girl Action 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 BoM Principal - 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 suspension Automatic suspension Rolling suspension X Informal or unacknowledged suspension/voluntary withdrawal X Open-ended suspension X

Fair procedures based on the principles of natural justice (1) The right to be heard Rt to know what was alleged misbehaviour Rt to respond If possibility of serious sanction, rt to be heard by BoM Absence of bias

State (Smullen & Smullen) V Duffy 1980 High Court No automatic right to legal representation at BOM meetings

Expulsion Authority to expel should be reserved for the BOM This authority should not be delegated Seek assistance of support agencies, NEWB,NEPS Legal 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) V Dunmore Community College January 2009 Equality 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 code Health and safety statement Admission/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 Professional Competence Issues Not Teaching Class Other Disciplinary Issues Late PRINCIPALS Professional Competence Issues (Teaching only) Other Disciplinary Issues (non teaching activity) All Ancillary Staff/Admin Principals only

School Principal dismissed Gertie Mc Nerney v Bom of St.Patrick’s Primary school Dromard,Moyne.co.Longford Employment Appeals Tribunal 2009 €55,000 awarded

HAND V LUDLOW (High Court )2009 Removal of prefab from school Maintaining false records Manipulation 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