Traditionally, discipline was governed by non-statutory rules and practices. A number of regulations and circulars were issued by the Department of Education which were relevant to the issues. Very few cases were litigated. However, some cases concerning alleged assaults were taken.
Corporal punishment was in effect allowed at common law. The teacher was in loco parentis (in the place of the parent) during school hours. As with a parent, the teacher had the right to use moderate and reasonable corporate punishment on pupils in their role as educator.
What was reasonable and moderate depended on the circumstances, the age of the child, the severity of punishment and to some extent, the alleged transgression. If punishment fell outside these criteria, then the teacher or school could be liable for the civil wrong of battery/trespass to the person.
In the context of criminal liability, there was a common law defence against a charge of assault, which largely protected teachers from criminal liability. The offence was restated, and the common law defence was removed by the Non-Fatal Offences against the Person Act 1997.
The Education (Welfare) Act 2000 requires that parents be provided with a copy of the school’s code of behaviour. It may be made a condition of registration and attendance that the parent confirms in writing his agreement to the code and undertakes to use all reasonable endeavours to ensure that the child complies with it.
The traditional approach contemplated a broad latitude of schools in relation to disciplinary procedures. Even under the modern approach, there may be exceptional circumstances where immediate long-term suspension is appropriate without procedures.
The courts have accepted that some disciplinary sanctions such as relatively minor sanctions and very short suspensions ought not to be subject to High Court review. They are within the ordinary disciplinary powers of school authorities while in loco parentis.
Similar sanctions such as staying back after school and “writing out” may be within this principle. Issues may arise in respect of detention where the parent withdraws consent.
The National Educational Welfare Board guidelines suggest that sanctions up to three days are within the ambit of the school power without further procedures. Where a student is suspended from a recognised school for not less than six days, the principal must inform an Educational Welfare Officer.
Expulsion is prohibited before the passage of twenty school days following receipt of notice of the proposal by an Educational Welfare Officer. This is without prejudice with the right of the board of management to take other reasonable measures appropriate to ensure that good order and discipline is maintained in the school concerned.
Reasonable decisions within the scope of this privilege where so necessary are unlikely to be subject to review. They must be taken in order to protect good order, discipline and safety. This residual power outside the scope of the legislation is assumed to derive from the traditional “in loco parentis” delegation of parental authority.
Certain decisions that have a longer-term impact upon a child and are potentially subject to review. Decisions to expel or suspend a child for a long time, refuse enrolment or refuse sitting of an exam are likely to require fair procedures.
In recognized schools, the parent or a child who is over 18 may seek the leave of the High Court to have a decision of a quasi-judicial nature made by the school reviewed on the basis of fairness, reasonableness, legality or proportionality. This is a judicial review. See generally the sections on administrative law and judicial review.
Case law suggests that a judicial review may be taken in respect of inaction, in exceptional cases. In the event of a serious matter or incident which has a direct effect on others such as personal injury, judicial review might be granted on the basis that in the particular circumstances that failure to act is not lawful.
Guidelines Serious Cases
The guidelines issued by the National Education Welfare Board provide that a code of behaviour may apply sanctions that relate to behaviour taking place outside school.
Where misbehaviour has taken place outside the school, while not under school care or management, there may be cases where there is a clear connection with the school and a demonstrable impact on its work, so that the code of behaviour may apply.
Older cases suggest that a teacher may discipline a pupil for certain transgressions outside the school premises while the pupil is on the way to or from the school. There must be a connection between the incident/behaviour and the school.
Serious Sanctions Procedure
Where there is a danger to life and property following a serious incident, the cases suggest immediate suspension after a bona fide investigation carried out informally, which may suffice in serious cases.
Where a serious sanction such as expulsion is proposed, parents must be given the opportunity to make representations and have their position noted and taken into account by the decision-makers/the board. Once the procedures are broadly fair, the courts are not likely to interfere with the autonomy of the school. Very exceptional circumstances may justify immediate long-term suspension without notice or significant process.
In the context of a meeting considering matters of this nature, the involvement of lawyers is not desirable. The courts have not upheld a claimed right to legal representation.
The DES guidelines apply to recognized schools. In the case of schools that are not recognised schools, reference should be made to their code of behaviour.
The student or parents should be given a reasonable opportunity to make their case and be heard. He should be given advance notice of the charges and the gist of the evidence. He should be given the opportunity to respond to it with evidence of his own, and if he wishes, to address the deciding body.
Before the board of management or other entity acting on its behalf is of the opinion that the student should be expelled, it shall first notify the Educational Welfare Officer in writing of its opinion on the reasons for it.
The student may not be expelled until 20 days following the receipt of notification. This is without prejudice to the right of the board or management to take all the reasonable measures as are appropriate to ensure that good order and discipline are maintained in the school and the safety of students and staff are secured.
Detention after hours may be presumptively permitted, provided it is within the scope of parental consent under the code of behaviour.
There are cases that suggest that the parent may withdraw consent in which event the detention may no longer be permitted. Where however the parents have undertaken to ensure compliance, the question arises as to whether it can be lawfully withdrawn.
Detention in unreasonable circumstances, for example, unsupervised and alone, may constitute false imprisonment and be outside the scope of consent under the school policy.
The National Educational Welfare Board guidelines provide that schools must have policies to prevent and address bullying. This should be an adequate and appropriate policy on bullying approved by the board of management. It should ideally be formulated in conjunction with various stakeholders. It should be implemented when bullying or a suspicion of bullying arises.
The parents / or the pupils involved should be interviewed and permitted to state their case. Warnings should generally be given in the case of first offences with an indication of what will happen in the event of recurrence. Close communication should be maintained. Other appropriate anti-bullying measures are usually appropriate.
Civil claims have been made on the basis that schools have negligently failed to manage bullying. The courts may accept such a claim of negligence in exceptional cases but will allow considerable latitude.
The duty must take effect in the context of managing the school and the necessary social intermingling amongst children. Generally, if the schools act in accordance with their bullying policy, they are is unlikely to breach any common law duties of care.
Child protection guidelines have been published by the Department of Children and Youth Affairs
Codes of Behaviour
The code of behaviour is mandated by legislation. Adherence to the code is likely to be regarded as a critical part of disciplinary proceedings.
The following sanctions are inappropriate
- physical punishment,
- ridicule sarcasm or remarks likely to undermine self-confidence,
- public or private humiliation,
- applying sanctions to whole group or classes or individual wrongdoing
- leaving a child in an unsupervised situation,
- persistent isolation within a class,
- sanctions contrary to equality legislation.
The guidelines on codes of behaviour indicate that if the detention is to be used as a sanction, parents should have adequate notice of it. Generally, it will be specified in the code of behaviour and parents will have consented to it. Parents should be given notice of the time of administration of the sanction.
The temporary removal of a student to a supervised place may be appropriate in the interests of classroom management.
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