The right to education is protected in Irish Law and this means that decisions to suspend or expel are open to appeal and may ultimately end up in the High Court. However, educators must balance the right of the individual to education with the needs of other students and staff. What a school needs, more than anything else, is a clearly stated policy and set of procedures which will allow it to weather any challenge to its actions.
While suspensions and expulsions are more common in secondary schools than in primary schools, they do arise. The Education Act provides for a right of appeal and 2000 Act involves the Educational Welfare Officers.
The legislation and guidelines are very much against proceeding with suspensions/expulsions if at all possible. Every avenue should be explored before these take place.
One of the duties of boards of management under Section 15 of the Education Act 1998 is to publish the policy of the school regarding the expulsion and suspension of pupils. A school is entitled to devise its own policies once they are not discriminatory.
In general the Principal should bring any suspension of over three days to the board.
If he/she deals with it himself, the parents will be given the right to appeal to the Board. Clear notes should be taken by the Principal in making his decision.
Any suspension over 5 days has to be notified to the Educational Welfare Officer.
Any suspension that brings the number of suspension days in a school year to over 20 gives a right to appeal to the Department under S.29 of the Education Act.
As long as fair procedures are adopted, decisions to suspend are unlikely to involve the school in legal action.
Our advice is that if legal correspondence is received in relation to suspension/expulsions then it should be responded to by a Solicitor. There is always the danger that something you write to a solicitor will be used against you at a later stage.
An appeal under section 29 is probably more likely than legal action in the case of a suspension.
A decision to expel, however, is much more likely to result in legal action and the best the school can do is make sure that the procedures it follows are beyond reproach from a legal point of view.
The fair procedures to be employed are straightforward:
- Allegations of bad behaviour should be properly documented outlining exactly what happened from direct witnesses.
- If a decision is made that the behaviour may warrant a suspension or expulsion under the schools code of behaviour, then the allegations should be notified to the parents, preferably in writing with an outline of the investigation that will take place.
- When the investigation is complete, the allegations must be put to the child having notified the parents. Needless to say discretion has to be exercised regarding this where the child is very young and the formality of a hearing might be damaging. One way or the other the parents should be present at an interview with the child. It would be advisable for the Principal and one other teacher to be present. They should be told what options are being considered whether by the Principal or the Board.
- The child and their parents should be given a chance to respond.
If the parents are unhappy with the Principal’s decision, they may appeal to the board. Alternatively, the issue might be decided by the board in the first place.
If the issue goes to the board, the board should be given a clear outline of the circumstances of the case and the interview with the parents and child. They may also be told of any previous problems with the child and the action taken. They will hear the parents and will deliberate in the absence of the Principal and the parents. The board may then proceed with their decision. There is no obligation to allow legal representation at this hearing and this should be avoided if possible. The board should make a record of their decision and the reasons for it.
If the parents are unhappy with the board’s decision, the Patron of the school should provide an appeals mechanism. If the parents are unsuccessful on appeal to a Patron’s appeal mechanism, they may then appeal to the Department under S.29.
Under the Education (Welfare) Act 2000, in the case of an expulsion, the Education Welfare Officer must first be notified before a decision to expel can be put into effect.
The Education (Miscellaneous Provisions) Act, 2007 clarified what an appeals board can look at and it gives them very wide powers indeed regarding the incidents themselves but also policies and duties of the school.
Section 29 Appeals
In the Board of St. Mologa’s National School case, the Supreme Court set out that S.29 Appeal is a full rehearing of the case as opposed to just looking at the procedures used. The appeals board can make recommendations as to how the case should be resolved which the Secretary of the Department can direct the schools to carry out.
In Irish law, there are two types of appeals:
- The first is where the appeals body will only look at the procedures used when making initial decision. If the procedures used in arriving at the decision were correct, then the decision stands.
- The second type of appeal is where the appeals body will rehear the entire case and make their own decision.
For example, Joe is expelled for bad behaviour. Using appeal 1, the appeals body looks at the procedures the school used in expelling Joe and finds that they were correct. The school used all of the procedures outlined above and came to their decision in the right way. The decision of the school stands.
However, using appeal type 2, one of the things the appeals body looks at is the bad behaviour. It finds that Joe’s behaviour was not bad enough for the school to expel him. The decision is overturned and Joe can remain in the school.
You can see from this example how the type of appeal can have a big impact on the outcome of the case.
In the St. Mologa’s case, the Supreme Court ruled that the S.29 appeal is a type two appeal as explained above. It is a full rehearing of the case and the appeals board can make recommendations as to how the case should be resolved with the Secretary of the Department can direct the school to carry out.
It is generally only after the parents fail in a Section 29 appeal that they will issue legal proceedings.
In practical terms, if there is a legal challenge, the parents will issue judicial review proceedings regarding S.29 appeal. Judicial review is a mechanism where the High Court reviews decisions of public bodies.
The Court will not rehear the case but look at whether the S.29 committee dealt with the case fairly. It won’t substitute its own decision. This is a type 1 appeal as explained above.
In theory it is possible that the parents could proceed straight to the High Court seeking an injunction (rather than wait for the Department appeal) but this would be very unlikely to succeed as long as fair procedures were adopted and where the appeal mechanism is open to parents.