Independent tribunal needed for protection of 'problem pupils'

BEN MILLS
Last updated 12:15 25/07/2012

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OPINION: Principal Youth Court Judge Andrew Becroft has been widely quoted recently calling for schools to do more to keep students at school. 'A problem pupil removed is a problem solved for that school, but not for our communities. It's simply relocated.'

The real problem is that the law gives schools unprecedented decision-making power - they can do anything they think 'necessary or desirable' for students' education or safety - but very few checks exist on how schools use that power.

What is urgently required is an independent education review tribunal that would hold schools to account and bring them into line with other major public and private services.

The entire health sector, the police, Child, Youth and Family, Work and Income, Inland Revenue, ACC, Immigration NZ, Customs, Legal Aid, Student Support, and Housing NZ all have accessible, independent bodies to which dissatisfied individuals can appeal to challenge decisions. There is no such entity for the education system. This raises important questions for the accountability of education tax dollars for taxpayers. It also raises questions about the degree to which an entire sector of the public service, accounting for some $5.1 billion, can seemingly do whatever it wants.

At a time when child protection and welfare is all over the news, and the Government has recently conducted a review of how best to protect vulnerable children, the most vulnerable students are still being kicked out of school unnecessarily - at times even illegally - and there's very little they or their parents can do about it.

This doesn't just affect a couple of kids. In 2010 more than 1600 exclusions or expulsions from state schools took place, 1400 of which involved students under the age of 16. One in every three students who is suspended from a state school is excluded or expelled.

Similarly, if a school makes unfavourable decisions about enrolment, discipline, student support, field trips or sports teams, school rules or their application, searching students, freedom of expression, privacy, bullying, or stand- downs, suspensions, exclusions and expulsions, there's very little students or their parents can currently do to challenge those decisions other than to formally complain to the principal, then the school board of trustees.

Of course, all government actions can be challenged in the High Court, so the lack of an independent agency isn't a problem for families with a spare $20,000 to $30,000. But for most families formal legal action is too costly; too long; and, most importantly, is rarely in the interests of the child or young person.

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Turning to the Education Ministry has its problems. The Tomorrow's Schools model too often allows the government to wipe its hands clean of school decision-making, since schools are separate entities. The ministry does have the power to dismiss a school board and appoint a commissioner, but it rarely does so. When it does, it tends to be for financial reasons rather than unlawful school decision-making.

Though there are broader agencies to help with specific problems such as the privacy commissioner, the Human Rights Commission, the Office of the Children's Commissioner and the ombudsman, such agencies have specific mandates and can't help with all issues. Some are not well known or understood, and the process can take a number of months or even years, during which vulnerable children can be out of school.

An independent education review tribunal could hear complaints from students and their parents about school decision-making and make a public ruling instructing schools to reverse unfair decisions. This tribunal should be low- cost, relatively quick, have public decisions to help with compliance among other schools, and should also prioritise cases involving students with special educational needs.

Statistics are not required to justify greater accountability for schools. However, several concerning numbers can be referred to if necessary:

* Seventy-seven per cent of under 16s excluded from school are out of education for at least one month; 39 per cent are out for at least three months and 13 per cent do not receive formal education for nine months or more.

* In 2010, 107 students turned 16 years old after having been excluded from school and out of school for at least one month. Once a student turns 16 years old the Ministry of Education simply stops working to find them an education.

* The ministry has a statutory power to require schools or parents to enrol excluded or expelled students. Of the 1600 exclusions or expulsions in 2010 the ministry used this power 7 per cent of the time.

* There were 39 students who were excluded in 2010 and two students who were excluded in 2009 who were still not enrolled with an education provider by July 2011.

* In 2010 10 per cent of suspended students and 13.4 per cent of excluded students were classed as having special educational needs.

In a time when Government and society are concerned with our vulnerable children, many vulnerable children are at risk of being left behind due to being excluded from the education system. An independent education review tribunal is urgently required to make ensure that when this is happening schools are acting fairly and complying with the law.

Ben Mills is the legal education co-ordinator for Youth Law Tino Rangatiratanga Taitamariki, a nationwide community law centre for children and young people.

- The Dominion Post

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