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CEIST CONFERENCE

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”.

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CEIST CONFERENCE

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

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

  3. Education Welfare Act 2000section 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

  4. 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

  5. Section 29 Appeals against BOM decisions • Expulsion • Suspensions for 20 days or more • Refusal to enrol

  6. 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

  7. 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

  8. 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

  9. Codes of Behaviour/ The New Guidelines 2008 • Section 23(3) Education Welfare Act 2000 • National Educational Welfare Board (NEWB) obliged to publish guidelines • Clarifies issues for schools

  10. Murtagh v BOM of St. Emer’s Primary School (High Court & Supreme Court) 1991 • “ 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”

  11. 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

  12. 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

  13. 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.

  14. 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

  15. Applying sanctions to misbehaviour outside schoolStudent A and Student B VA 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

  16. 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

  17. 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

  18. Forms of suspension • Immediate suspension • Automatic suspension • Rolling suspension X • Informal or unacknowledged suspension/voluntary withdrawal X • Open-ended suspension X

  19. 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

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

  21. 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

  22. 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

  23. 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

  24. 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

  25. 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

  26. Kirpan Case • Total ban on 12 yr old boy wearing kirpan • The school violated an individual’s freedom of religion. Supreme Court of Canada

  27. Mulvey (a minor) v Mc Donagh High Court 2004 • Adopted DES guidelines i.e. bullying definition must be ; • repeated • ongoing • sustained

  28. 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

  29. 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

  30. Separated parent challenges School policy on p/t meetings A v A Primary School Equality Tribunal 2009

  31. Circular 60/99 • Dismissal /suspension of teachers/principal teachers

  32. 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

  33. 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

  34. HSE V Information Commissioner (High Court) 2008 HSE must disclose confidential information given by teachers to social workers

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