113 Exclusion of Pupils from School in the UK Brenda Parkes1 Introduction In a recent speech to a school academy, Mi- cipline system which give increased powers chael Gove MP, Secretary of State for Edu- to teachers to manage bad behaviour. It has cation, described those participating in the also raised concerns, however, about the im- summer riots in the UK as an “educational pact on the rights of children in school and - the impact on equality. cational underachievement, truancy, exclu- sionsunderclass”, and crime. and made2 For theGove, link the between riots wereedu For decades, there have been concerns about well-timed as an Education Bill (the Bill) with the disproportionate numbers of pupils from an aim to address discipline in school was certain ethnic minority groups, as well as going through parliament. The Bill received those with disabilities and special educa- Royal Assent in November 2011, becoming tional needs (SEN), who are affected by the the Education Act 2011 (EA2011). Amongst exclusions regime. This article will examine its changes, which included some positive the current debate and evidence regarding - school exclusions, and consider whether sion to two-year-olds from disadvantaged there has been any improvement, and any backgrounds,measures such were as changesfree “early to theyears” exclusions provi examples of good practice, in attempts to ad- regime, including the abolition of exclusion dress disproportionality in the numbers of appeal panels (EAPs), and the creation of particular social groups who are excluded. It independent review panels (IRPs), with no will consider the equality and human rights power to direct reinstatement of a pupil, in context of exclusions and whether the recent their place. changes to the exclusions system are likely to assist or hinder the advancement of equality and protection of the rights of pupils. referred to the adverse impact bad behav- iourThe “equalitycan have impact on teachers, assessment” and how on the it canBill 1. Legal Framework be a demotivating factor to those working in school and a deterrent to people who may The legal framework relating to the exclu- be considering entering into the teaching sions regime in the UK is found in statutes profession.3 It states that “[a] sharper focus specifically relating to education. In order on discipline will improve school ethos and for this framework to be critically ana- raise the attainment of all. We are on the side lysed, however, it is also necessary to ex- amine the impact of equality and human laying down lines which those who behave rights legislation on the implementation of of teachers and will not4 be deflected from the regime. Each of these areas is explored teachers has resulted in reforms to the dis- in more detail below. badly must not cross.” This “siding” with The Equal Rights Review, Vol. Eight (2012) 114 1.1 Education Law 1.2 Equality Act 2010 The Education Act 2002 (EA2002) and the In exercising all of its functions, including Education and Inspections Act 2006 set out those related to the exclusions regime, a school must comply with equality legislation, term exclusions.5 These statutes provide that and in particular, the Equality Act 2010 (the aprovisions school can relating permanently to permanent exclude aand pupil fixed if: Equality Act).7 (i) he/she has seriously broken the school behaviour policy, and (ii) when allowing the Direct and Indirect Discrimination pupil to remain in the school would seriously harm the education or welfare of the pupil or Direct discrimination occurs when a person others in the school. The local authority must treats another person less favourably than provide full-time education from the sixth they treat or would treat another because school day of a permanent exclusion. of a protected characteristic.8 For example, direct discrimination in the exclusion pro- - cess would occur if a pupil who is black or riod for persistent disruptive behaviour is disabled is excluded for a longer period in whereA school it canis not exclude serious a pupil enough for toa fixedwarrant pe comparison to a white or non-disabled pu- permanent exclusion. The school must not, pil who has behaved in a similar way. Direct however, exclude pupils for more than a to- discrimination could also occur if a disabled tal of 45 days within any school year. If a pu- pupil is excluded as a result of the failure by pil is excluded for more than one day then the school to make reasonable adjustments.9 they must be given work and the school Sometimes exclusions may occur when a pu- must mark it. From the sixth consecutive pil has responded to prejudicial bullying in circumstances which can amount to direct - discrimination. nativeschool suitableday of educationa fixed term for theexclusion, pupil. the school has responsibility for finding alter A high proportion of exclusions involve pu- The governing body of the school is required pils with SEN, many of whom have learning to review the head teacher’s decision to ex- disabilities. By way of example, in 2009, the clude, and the parent is allowed to meet with High Court ruled in favour of a nine-year old them. If the decision is upheld then the par- disabled student who had been excluded ent may appeal to the EAP, which has the for disruptive behaviour linked to his dis- power to direct the head teacher to reinstate - the pupil. The EAPs also deal with disability order (ADHD).10 The school argued that the claims in relation to permanent exclusions decisionability, Attention to exclude Deficit was made Hyperactivity on grounds Dis of from maintained schools, short stay schools health and safety. However the court upheld and pupil referral claims. Disability claims the Special Educational Needs & Disabil- ity Tribunal’s decision that, under the Dis- First Tier Tribunal (the FTT). Discrimination ability Discrimination Act 1995 (DDA), the claimsagainst in fixed respect term of exclusions any other areprotected heard inchar the- school had failed to make reasonable adjust- acteristics are heard in the County Court. The ments, as it should have involved the help EA2011 referred to below introduces new of a specialist team that was available to review panels to replace existing appeal pan- them prior to the incident. The judge ruled els in September 2012.6 that the pupil’s scratching which tended to The Equal Rights Review, Vol. Eight (2012) 115 lead to physical abuse was not covered by their use of stop and search, and which had the DDA but his ADHD was. Many cases in- not convinced the EHRC that they had taken volving pupils with SEN arising from a par- the necessary steps to comply with equality ticular disability could also involve failure and human rights legislation. In the absence to make reasonable adjustments and other of a satisfactory explanation for the evident forms of discriminatory treatment. disproportionality, an indirect discrimina- tion claim could be made. The EHRC served Indirect discrimination would occur if the letters before action on two forces, and en- exclusion process results in a dispropor- tered into formal legally binding agreements tionate adverse impact on a group with a with them following their undertaking to protected characteristic, without any justi- take the necessary steps to address the dis- proportionality rates.14 school or local authority, which is not found tofication be a forproportionate the policy being means provided of achieving by the a legitimate aim.11 In relation to the latter, school exclusions have historically been ap- questions could be asked about the effec- pliedSimilarly disproportionately to the “stop and to search”different process, social tiveness of excluding pupils from school as groups. Whether the exclusions system is a policy generally. - cumstance is not an entirely straightforward The case of D.H. and Others v Czech Repub- matter,objectively however, justified and couldin any involve particular a number cir lic12 involved discrimination under Article of different interpretations of the usefulness 14 (Non-discrimination) of the European and legitimacy of the principle of exclusion Convention on Human Rights and Funda- and the likely consequences that follow. Fur- mental Freedoms (ECHR) and included thermore, the statistical interpretation may comments that exclusion could relate to a be particularly complex given the distribu- pattern of discrimination as well as a spe- and the increase in autonomy within the who were generally segregated within the schooltion of system.exclusion Many figures of those between who haveschools re- educationcific act. This system case byrelated being to placed Roma inchildren reme- searched this issue have highlighted the role dial special schools. The case was brought that alternative measures can play in ad- under Article 14 and Article 2 of Protocol dressing behavioural issues – measures such 1 (Right to education) of the ECHR. The as early intervention and restorative justice, European Court of Human Rights (ECtHR) which may often be more effective in meet- concluded that even if a law is neutral, if its ing the aims that the exclusions system sets effect is racially disproportionate without out to achieve.15 Public Sector Equality Duty justification, it would be unlawful. in another area of social policy is the use of Under the Equality Act’s new public sec- stopAn example and search. of a Following“pattern of the discrimination” publication of tor equality duty, which came into effect a report into the use of this historically con- in April 2011,16 listed public authorities troversial police tactic,13 the Equality and Hu- (including maintained schools) and others man Rights Commission (EHRC) carried out who carry out public functions must, in the inquiries into certain forces which had dem- exercise of their functions, have due regard onstrated high levels of disproportionality in to the need to: The Equal Rights Review, Vol.