Simon Judd: Students removed from school deserve justice

It is difficult to see how the exile of a child, who already has problems, from their school community, teachers and friends is likely to help the child or wider society. Photo / 123RF

COMMENT:

I was pleased to see the article by Simon Collins on the front page of the Herald last Wednesday highlighting the problem of students being stood down, suspended, excluded and expelled from school.

As he reported, there has been an increase in the number of students being removed from school over the past three years and a high proportion of those students suffer from learning or behavioural disabilities such as Autism Spectrum Disorder and Fetal Alcohol Syndrome. Collins also correctly pointed out that Māori students are over represented in the statistics.

The question of whether it is ever appropriate to remove a young person from school for disciplinary reasons in a modern advanced society like New Zealand is a philosophical and political question that needs to be explored.

It is difficult to see how the exile of a child, who already has problems, from their school community, teachers and friends is likely to help the child or wider society. There is a substantial body of research to the effect that young people removed from school are more likely to end up in the criminal justice system.

In the United States this is called "the school to prison pipeline". There must be better and more effective alternatives that still involve accountability for wrongdoing but focus on helping the child in their education rather than alienating them from it.

A particular issue highlighted in Collins' report is that there is no right of appeal from these disciplinary decisions. This is remarkable in a modern society and is out of kilter with our rights and expectations in other comparable situations.

Those found guilty of even the most minor infraction, such as a parking ticket, have a right of appeal. If an All Black is given a red card, he has a right of appeal. An employee who believes they have been wrongfully dismissed from their job has the right to bring a personal grievance.

And yet, a student removed from school has no right of appeal. They can apply to the High Court for judicial review but all the High Court can do is look at whether the school followed proper procedure and the legal requirements.

The only order the High Court can make is to set aside the decision and send it back to the school to make the decision again. The High Court cannot change the decision even if it was wrong.

It is great to see that the School Trustees Association, the Human Rights Commission and the Office of the Childrens' Commissioner recognise the unfairness of the current regime. The proposed pilot of a review panel is a step in the right direction but of course it is voluntary and is not giving young people the right to an appeal that adults would expect in the same situation.

I do not agree with the president of the School Trustees' Association, Lorraine Kerr, that there should be a delay in approaching the Government for a law change in this area. Clearly the current situation is unfair and young people deserve a legal right of appeal from decisions that often have a catastrophic effect on their confidence, their mental health and their futures.

Labour's election manifesto said: "Labour will establish an independent disputes resolution tribunal to hear appeals against decisions taken by schools and early childhood services." There is no need for further debate on this. The Government should honour its election manifesto commitment and establish an appeals tribunal as soon as possible.

• Simon Judd, an Auckland barrister, has acted for students on applications to the High Court for judicial review of suspension, exclusion and expulsion decisions, including the Green Bay High School case in 2014. He is the chair of the board of Youth Law Aotearoa.