3. Judicial guidance

The court provides useful judicial guidance on the process to be followed by a principal and school board when considering stand-down, suspension, exclusion or expulsion.

Gross Misconduct

The following are excerpts from the leading New Zealand case authority on school suspensions and expulsions: M and R v S and Board of Trustees Palmerston North Boys High School (1990) HC: Palmerston North, CP: 302 and 305 5/12/ 90, McGechan, J.

At page 19

First, the statutory criterion is not simple “misconduct”. It is “gross” misconduct.... If the stated criterion was simple “misconduct”, any infraction at all of standards of proper conduct, whether laid down by school rules or more general standards of accepted behaviour, however minor, would place a student at risk of suspension or expulsion. Such a situation would not have been intended. The legislature inserted the qualifying adjective “gross”, with its connotations of the striking and reprehensible to ensure a child is not suspended or expelled for relatively minor misconduct.

Second, the underlying scheme into which the criterion “misconduct” fits must be kept in mind. The classification “gross misconduct” is to provide a criterion by which the principal and ultimately board may (not must) eliminate the presence of a disruptive or dangerous student. That is achieved by the removal of the student from the school. “Gross misconduct” envisages misconduct of a character sufficiently grave to warrant removal of the child from the school, permanently, and notwithstanding damage which may well be done to that child.

At page 27

Whether or not a particular act amounts to “gross misconduct” will always depend upon all the circumstances prevailing at the time. Take as an example petty theft, whether from the school, staff or fellow students. Doubtless it is misconduct. It is a crime. But is it striking and reprehensible to a degree as to warrant suspension or expulsion? A moment’s thought shows a mass of variables arise. Is theft a merely occasional problem, bringing it into public disrepute? Was the theft an isolated one, unlikely to recur, or part of an ongoing course of misconduct? What was the value, or importance, of the items stolen? Were there aggravating features such as associated damage, or sale of the item for profit? The list is endless. Testing the matter by character, and potential to warrant exclusion of the student, one theft may cross the line into “gross misconduct” and another may not.... The statute allows sufficient flexibility in the concept of “gross misconduct” to meet situations and needs which may differ. Irritating as it may be... it is necessary to carefully consider and weigh the circumstances of each individual case on its own merits, in reaching a decision.

At page 28

Is the misconduct striking and reprehensible to a point where it warrants removal from school, despite resulting individual damage? All the individual circumstances must be considered. There are no absolutes.

At page 45

The “gross misconduct” and “harmful or dangerous example” pre-requisites, which empower and restrict a principal, apply likewise to powers and consideration at board level.

At page 58

...this decision holds

(i) That “gross” misconduct involves misconduct striking and reprehensible to a high degree which warrants removal of the student from the school despite damage which would result to the student. Whether conduct attains that level will depend on the circumstances of a particular case.

(ii) That schools may have a general policy towards alcohol and drugs, but cases of alcohol and drug use must not be resolved automatically in accordance with such policy. Principals and boards instead must carefully consider all the circumstances of each individual case before deciding whether or not individual alcohol related conduct amounts to gross misconduct. it may be troublesome, but it must be done.

(iii) That even where gross misconduct and harmful or dangerous example have been found to exist, principals must not suspend automatically. Principals must pause and consider whether in all circumstances of the particular case, suspension for an unspecified period* is warranted as a matter of discretion. Boards must consider whether, in all the circumstances of the particular case, uplifting of suspension (conditionally or otherwise) or extended suspension or expulsion is warranted as a mailer of discretion. At each of the latter discretionary stages, special circumstances and considerations of humanity and mercy may have to be brought into account.

These statutory approaches are designed for the protection of children. They are not to be sacrificed to administrative or disciplinary efficiency, or some supposed need for absolute certainty. Results must not be fixed; they must instead be fair.

It should be noted that this judgement was given in 1990. The 1999 legislation removed suspension for an unspecified period from the statutes.

Due Process

In another significant case, breach of due process occurred, despite an acknowledgement by the principal that he knew of the guidelines for suspensions and expulsions provided in a Ministry of Education circular. The Judge found that the guidelines were not adhered to. The Judge also found that it is a subsidiary rule of natural justice that decisions must be based on the correct facts.

At issue here was that the student had been suspended for gross misconduct, but the board expelled the student on the grounds of both gross misconduct and continual disobedience. The finding of continual disobedience was based on the evidence of prior warnings. However, neither the student nor the parents had been notified that this was a reason for suspension, and the issue was not discussed with the parents at the suspension meeting. This failure was a breach of natural justice, as the opportunity to be heard was denied by the board’s action.

The following are excerpts from this case: S v M and Board of Trustees Auckland Grammar School (1998) HC: Auckland, June 1998, Smellie, J.

At page 47

The important fact is that there is no evidence whatsoever that the plaintiff, his parents, or his counsel were ever advised that the board, during its deliberations, was going to add the further and additional allegation of “continual disobedience” and no opportunity was provided to comment upon it or refute it.

…it was not pointed out to the plaintiff that now he had turned i6, for gross misconduct or continual disobedience he could be suspended for an unspecified period and that on the matter being referred to the board, he could be expelled. In my judgement, before further offending resulted in the ultimate penalty of expulsion, the plaintiff was entitled to be told what jeopardy he would face if he offended again.

…the rules of natural justice required notice and an opportunity to refute before “continual disobedience” was added and found to be proved.

At page 61

[Following reference to various cases on preceding pages]

The above passages have direct relevance to this case. They support certain views I have formed which may be summarised as follows:

• Gross misconduct must be striking and reprehensible to a high degree and sufficient to justify removal.
• Predetermination or a bias towards predetermination is an invalid approach to finding gross misconduct.
• All aspects of the individual case must be carefully considered before a decision is reached.
• School rules and the setting of boundaries or consequences before the event cannot dictate the outcome.
• The discretion to suspend is not to be fettered by preconceived policy considerations or a perceived necessity to maintain discipline.
• Valid suspension by the Headmaster is a pre-requisite to the Board’s jurisdiction, but validity may be cured by the Board’s subsequent conduct of the matter.
• In the exercise of its discretion the Board had to consider all three options. Failure to properly consider lifting subject to conditions, or at all, invalidates the decision.

At page 64

I hold that in the particular circumstances of this case the Headmaster’s decision to suspend, based on the significantly incorrect factual foundation set out [on preceding pages], is invalidated because of that mistake. It is appropriate for me to say, however,... that although the Headmaster did exercise his discretion as required by law and made his decision on incorrect facts, nonetheless there is nothing to suggest that, he acted in other than good faith.... But good faith is not enough. The law must be complied with.