Schools and the Right to Discipline A Guide for Parents and Caregivers Written by Nicky Darlow This book was initially produced with the financial assistance of the Legal ServicesAgency. Subsequent reprints and this edition have been funded through the Office of the Children’s Commissioner. Published by: Wellington Community Law Centre Level 2, 84 Willis Street PO Box 24-005, Wellington 6142 [email protected] First edition May 1999 Second edition September 1999 Third edition December 2002 Fourth edition October 2005 Fourth edition updated February 2008 Fifth edition January 2011 Copyright © Wellington Community Law Centre 2011. All rights reserved. Parts of this book may be reproduced without alteration for educational or personal use, provided the source is acknowledged and the purpose is non-commercial. Commercial copying and any other reproduction without prior written consent is prohibited. ISBN 978-0-473-17271-8 Printed by Lithoprint Ltd Cover design and illustrations throughout: Greta Menzies iselgreta.blogspot.com hotchandgruel.blogspot.com The most up-to-date version of Schools and the Right to Discipline can be found online at: www.communitylaw.org.nz www.occ.org.nz DISCLAIMER: Every effort has been made to ensure this information is correct at the time of printing, however we cannot take responsibility for errors or omissions. Readers may need to seek specific advice for their particular situation and where appropriate are urged to do so. Contents Introduction 5 Acknowledgements 6 1. Right to an education 7 A right to education? • Types of schools • Teaching my child • Exemptions • Students with disabilities 2. Rights of boards of trustees and school staff 9 Boards: who are they and what do they do? • Monitoring performance • Contacting the board • Disputing board decisions • Staff and the right to discipline • The chain of authority 3. Parents’ and students’ rights 12 Informing parents of problems • Schools’ obligations • Accessing information • Rights of students in disciplinary process • School discipline structure 4. School rules 14 Making and enforcing school rules • Disagreeing with discipline • School discipline outside the school • Challenging a punishment 5. Legal and illegal punishments 16 Legal school punishments • Illegal or questionable school discipline • Challenging a punishment 6. School fees 18 Do I have to pay? • Voluntary donations, activity fees, attendance fees • Enforcing payment 7. Uniform and appearance 21 Does a uniform have to be worn? • Consequences of not wearing the uniform • Exemptions • Hair, taonga, jewellery • Challenging decisions 8. Truancy 23 What is truancy? • Disciplining for non-attendance • Help for truancy • Parents and truancy 9. Bullying in schools 26 What is bullying? • School’s obligations • Students’ rights • Text and cyberbullying 10. School searches 29 Staff searching students’ bags • Strip searches • Mass searches • Lockers • Police • Drug testing 11. Students with disabilities 32 Right to an education • Meeting students’ needs • Who qualifies for funding? • Disputing school decisions • Other education options 12. Interviewing students over criminal matters 36 Police questioning • Nominated adult • Informing parents • School staff interviewing students • Signed statements • Child, Youth and Family 13. Stand-downs, suspensions and expulsions 39 Grounds for excluding students • Schools’ obligations • Stand-downs • Suspensions • Exclusions • Expulsions • Types of behaviour • Suspension process • Challenging suspensions or expulsions 14. ‘Kiwi suspensions’ 48 What are they? • Students’ rights 15. Students and the Privacy Act 1993 49 When should parents be informed of a problem? • What information can be collected? • Protecting information • Passing on information • Accessing information • Complaints 16. School hostels 53 Regulations • Standards and inspection • If a student breaches the rules 17. Principles of natural justice 55 What is natural justice? • Rights and responsibilities • UN Convention on the Rights of the Child 18. Private Schools 57 Enrolment • Suspensions 19. Restorative practice: A paradigm shift 58 What is restorative practice in education? • Example of a school using a restorative approach • Are restorative approaches the ‘soft option’? 20. How to complain 61 Deciding what to do and how to do it • Who to consult Sample letters 62 Letter to principal • Letter to board of trustees • Letter to Ombudsman Definitions 65 Understanding terms used • Who different bodies are and what they do References 67 Useful contacts 69 Ministry of Education 71 Special Education Offices 73 Community Law Centres 75 Introduction Welcome to the fifth edition of this long-standing publication, Schools and the Right to Discipline. Schools and the Right to Discipline is the partner publication of a national information service for parents: the Parents Legal Information Line (PLINFO). PLINFO is a free service, and was established by the Wellington Community Law Centre in 1999. Annually, PLINFO receives a large number of calls about school-related issues. These calls are generally from parents and caregivers, and are about a broad range of issues, from school fees to concerns about bullying, or punishments, or possible breaches of student privacy. Calls to PLINFO continue to illustrate that parents and caregivers do not have easy access to information about the rights and responsibilities of their children, themselves, or their children’s schools. How did this guide for parents and caregivers come about? The Education Act 1989 established a Parents’ Advocacy Service, but that service was later abolished. The service had been an important part of the concept of Tomorrow’s Schools, and its abolition meant that parents lost a source of support and information. PLINFO, and its partner publication, Schools and the Right to Discipline, were both attempts to fill that gap. The guide’s ongoing popularity with parents, caregivers, and schools, suggests that it is fulfilling its aim. Schools and the Right to Discipline was originally produced with financial assistance from the Legal Services Agency, while subsequent reprints and this edition have been through the Office of the Children’s Commissioner. The free PLINFO helpline is also supported by the Office of the Children’s Commissioner. Schools and the Right to Discipline is now more than 10 years old. It has established itself as a source of practical, accessible and reliable information about legal issues in New Zealand’s schools. It is written by lawyers working in the field, who regularly assist parents and caregivers to navigate their way through school processes. Schools and the Right to Discipline also has valuable input from education specialists and staff from the Ministry of Education. It is called Schools and the Right to Discipline because of its substantial focus on the limits on a school’s power to discipline or punish students. But it also has legal information concerning other key issues facing students at school, including bullying, privacy and students with disabilities. Many people – certainly not just parents – hope that the law will offer a solution to their problems. This is often not the case. Legal remedies can be expensive, take a long time to pursue and do little to improve relationships. But knowledge is power. Parents have far more chance of being able to negotiate a satisfactory outcome for their children, if they understand what their rights are, and what their children’s rights are, within the school system. The free PLINFO service (0800 499 488) is available for parents, caregivers, students and advocates who are seeking further assistance, or clarification on any of the material in this guide. It is also important for parents to be aware that the Office of the Children’s Commissioner (OCC) trains children’s advocates in areas such as the care and protection of children and education law. These advocates can support families through the school disciplinary process, or provide information about children’s rights, and are available in a number of regions. The OCC can be contacted on ‘0800 A CHILD’. YouthLaw, a community law centre for children and young people, has a nationwide advocacy service and advice line (09 309 6967), and enables young people to access legal representation on educational matters in the Auckland region. This edition of Schools and the Right to Discipline is significantly expanded, and includes major updates to almost every chapter. The booklet also contains two new chapters: a brief chapter on private schools (Chapter 18), and an introductory chapter on restorative practices in schools (Chapter 19). In some respects, both of these chapters are outside the traditional boundaries of this guide. Although Schools and the Right to Discipline is a guide to legal issues in state and integrated schools, we have included the private schools chapter because we regularly receive calls to the PLINFO service about students’ rights in private schools. While this guide deals mostly with schools using traditional disciplinary measures (such as stand-downs, suspensions, exclusions and expulsions), we have included the restorative practices chapter in recognition of the apparent growing interest nationally in alternative systems. Our experience leads us to endorse restorative justice schools’ aims of keeping more students in school, for longer, and of addressing problems underlying events which lead to disciplinary attention. 5 Recent major changes to the education landscape have also been considered