On 24 February 2014 the High Court at Auckland overturned Green Bay High School’s decision to exclude a teenage boy with Aspergers syndrome after an incident between the boy and his teacher over a skateboard. The decision has lessons for Boards or Trustees and their advisors to take away when dealing with students with disabilities who have behavioural issues.

Background

The applicant was a 14 year old male student with mental health and learning and behavioural difficulties including dyslexia and Aspergers syndrome, difficulty in reading and writing, significant processing and behavioural issues including reactive aggressive behaviour in order to cope with anxiety. He had received treatment from psychiatrists, psychologists and other specialists over many years. An educational psychiatrist who had a long history with the applicant gave evidence that he had been the subject of numerous assessments and had been seen by the SPELD Programme, Ballantyne Learning Programme, the Voyager’s Programme and Kari Centre, had RTLB (Resource Teacher of Learning and Behaviour) involvement, art theory, psychiatric help and involvement with Man Alive.

At intermediate school the applicant was supported by SENCO, teacher aides, the educational psychiatrist and the RTLB service and his ability to manage his major behavioural problems had apparently significantly improved.

The decision records that when the applicant started at Green Bay High School, the Ministry of Education funded RTLB support was not activated on his enrolment. This meant that the wrap around services at intermediate school were not engaged at Green Bay High School. It is not recorded in the decision why this did not happen, but Richard Harrison, the school’s lawyer, told the Court that the school had tried repeatedly to gain extra funding to provide appropriate supervision for the applicant, but had been turned down by the Ministry of Education.

In the context of the school developing an individual educational plan for the applicant and the recognition that the applicant would be unlikely to have teacher assistance hours available to him, the educational psychiatrist wrote to the Dean of Year 9 recording the applicant’s mother’s concern about his defiance, not coping and his inability to express his feelings and the support provided for him. The educational psychiatrist suggested several strategies for coping including the applicant having a sensory tactile activity to settle him, avoiding talking to him until he was ready and able to engage and avoiding a lecturing or confrontational approach which was a trigger for the applicant. She also suggested that he identify with a significant person at the school that he could go to when he was not coping, preferably someone who was not “managing” him. The educational psychiatrist offered further assistance “with brain storming of strategies to prevent ongoing repetition of these behaviours” should the Dean consider it helpful. Unfortunately, this offer was not taken up by the school.

The Incident

On 5 July 2013 the applicant brought his skateboard into his English class in first period. He was asked by the teacher to leave his skateboard at the front of the room for collection at the end of the period, which he reluctantly did. Ten minutes later though he collected his skateboard and left the classroom, skateboarding backwards and forwards outside the classroom window. The teacher attempted to speak with the applicant and then the accounts are unclear as to whether the teacher asked the applicant to give him the skateboard or whether the applicant fell off the skateboard and his teacher picked it up, or alternatively that the teacher tried to pull the skateboard from the applicant. In any event, the applicant yelled obscenities at the teacher and was given two options by the teacher: to either hand the board over or to continue acting in the way that he was and “accept the consequences”. The teacher told the applicant to go to the Dean’s office. He skateboarded towards Student Services.

Inexplicably, the teacher followed him to Student Services during which time the applicant fell from his skateboard. There was a further exchange and when the applicant pulled the door to prevent the teacher from following him into Student Services, the teacher got his arm jammed and his head was hit by the closing door. The applicant needed to be physically restrained by senior members of staff at that time.

The bell then went for period 2 and the applicant indicated that he wanted to go to his next class which was Multi Materials Technology. It was of significance that the Dean’s report described him as demonstrating great potential in his field of interest in multi materials technology and of how proud he was of his achievements in this area. The applicant tried to go to his MMT class but was not allowed to, so he went to a safe place that had been established for him at that point.

The Principal consulted with a number of members of staff that day and made the decision to suspend the applicant on the basis that his actions were gross misconduct.

The Judge was critical that the Principal did not provide any assessment of the strategies suggested by the educational psychiatrist, which were specifically directed at addressing the applicant’s defiant behaviour. The Judge also accepted the point made by the applicant’s lawyer that there is no time limit in the legislation for a Principal when making a suspension decision. The Principal is entitled to take as long as he or she needs to establish the full facts of the incident in question and the full circumstances relating to the individual student before deciding whether or not to suspend.

The Judge referenced the Court of Appeal decision in Bovaird v J [2008] NZCA 325 where it was held that before a decision to suspend was made, the Principal should inform himself or herself as to the circumstances of the student and the context of the misconduct.

Justice Faire commented that the applicant was “no ordinary student who has decided to test the boundaries to see how he might deliberately test a teacher’s patience, whether to obtain peer accolade or for some other reason”. He went on to identify the applicant’s significant disability manifesting in behavioural problems including an inability to react appropriately when placed in a confrontational position. Justice Faire identified that the applicant needed to be handled with some skill when placed in such a situation and identified that his reaction to this confrontation was entirely predictable, as had been outlined by the educational psychiatrist to the Year 9 Dean prior to the incident. His Honour was critical that more time was not taken by the Principal before she made the decision to suspend because the subsequent short timeframe provided by the legislation for the subsequent Board meeting limited the ability to collect all of the relevant and important facts about the applicant’s position and how to manage it, which information was not before the Board when it made its decision.

Prior to the Board meeting, a number of staff provided reports on the incident, including one from the Principal, the Deputy Principal, the Year 9 Dean, the Senior Leadership Team and two other teachers, all of which were dated at least several days after the incident and the decision to suspend. It is notable that the material did not include a written report from the teacher involved in the incident.

Board Meeting

The Board met on 11 July 2013 and were provided with the reports in advance of the meeting. The applicant’s mother complained that she had prepared two documents which she wanted to read, in particular pointing out that there was no intention on the applicant’s part to hurt anybody, that his actions were exacerbated by being pursued by his teacher and that his intention was to get away rather than hurt someone. For an unexplained reason, the applicant’s mother was not given the opportunity to read those statements at the Board meeting. The minutes of the Board meeting are described as “brief” and record the decision to exclude the applicant from school because: “A has a long history of complex behavioural and learning needs requiring a significant level of support. The mainstream setting does not provide sufficient resourcing to ensure that A’s educational needs are met AND ensure the safety of other students and staff at the school.”

The Chairman of the Board also provided evidence by affidavit that the school was unable to continue providing sufficient resources to meet the applicant’s educational needs while at the same time ensuring the safety of other students and staff in the school.

Judicial Review

Justice Faire reviewed both the Principal’s decision to suspend and the Board’s decision to exclude the applicant on the grounds of whether they were lawful decisions, whether they were reached by fair process and whether they were reasonable. The Judge considered the following questions:

• Did the Principal establish all of the relevant facts? Was there a sufficient consideration of the individual circumstances of A and therefore a proper assessment as to whether a suspension was necessary?
• Did the Board of Trustees adequately enquire into whether the Principal’s assessment of A’s behaviour was correct and whether, on a consideration of A’s individual circumstances, the most serious response of excluding the applicant from school was justified?
• Did A’s behaviour on 5 July 2013 amount to gross misconduct? Was it a harmful and dangerous example to other students at the school?

The Judge referenced a further issue having been raised as to whether the decision to suspend and exclude were discriminatory and in breach of Section 56(1)(d) of the Human Rights Act 1993.

The Judge put some weight on the fact that the Principal was entitled to take as long as she considered necessary to establish the full facts of the incident in question and the full circumstances relating to the student before deciding to suspend or not. He referenced the fact that the incident appeared to have been escalated by the teacher deciding to pursue the applicant and requiring him to give up his skateboard and that a better approach to handling the student’s behavioural issues had been recorded before the incident and summarised by the educational psychiatrist to the Year 9 Dean.

The Judge accepted the applicant’s lawyer’s submission that had the Principal spoken to the applicant’s mother and to the educational psychiatrist she would have discovered that the support for the applicant had been reduced and there may have been a way of ensuring that appropriate resources were restored rather than taking the course of suspension leading to exclusion.

The Judge accordingly determined that there was “not a sufficient investigation of the facts by the Principal before the decision to suspend was made” and that that was repeated when reviewing the proceedings before the Board. Accordingly, the Judge quashed both the decision to suspend and the decision to exclude.

The Judge decided that given his determination of the first two questions, he was not required to consider whether the incident amounted to gross misconduct, or whether the decisions to suspend and exclude were discriminatory and in breach of the Human Rights Act.

Lessons for Boards of Trustees

While a great deal of sympathy can be afforded to teachers, management and Boards of Trustees faced with ongoing difficult behavioural issues as they were here, there are some lessons from Green Bay High School that can be taken by Principals and Boards who are faced with similar decisions.

• We recommend that time be taken to gather all information before making a decision to suspend including discussions with any special services dealing with the student in question. Time should be taken to review the student’s full file to ensure that all factors are being taken into consideration, not just the last incident.
• Ensure that you are not acting on “the straw that broke the camel’s back”. While Justice Faire didn’t determine whether the skateboard incident was sufficient to justify a finding of gross misconduct in this case, it seems a reasonable assumption based on the evidence of the Board Chair that the history of the student’s behavioural difficulties and the resourcing issues faced by the school played a large part in the decision to exclude. Youth Law asserted that the applicant’s behaviour did not meet the threshold for gross misconduct and that other students exhibiting similar behaviour would have been dealt with by way of detention rather than suspension and exclusion.
• Ensure that all of the relevant information is placed before the Board of Trustees and provided to the family well in advance of the Board disciplinary meeting.
• Ensure that natural justice is followed in allowing the student and his or her family to present whatever submission they would like to make. Awareness of difficult cultural perspectives is critical.
• While the Green Bay decision did not make any findings in respect of the Human Rights Act argument, it is important to remember the requirement not to discriminate on the grounds of disability. A useful question to hold in mind is would another student be treated the same in similar circumstances?