Student A and Student B (plaintiffs) v A Secondary School (defendant).
Natural Justice - Education - Application for an interlocutory injunction - Whether unfair procedures used - Whether contrary to the rules of natural and constitutional justice - Whether headmaster's expulsion decision valid - Whether penalty imposed disproportionate to severity of the of- fence - Whether the court can intervene in the decision-making authorities of a school.
The High Court (before Mr Justice Kearns): judgment delivered 25 November 1999.
Where there is an unrecognised school and that school wishes to impose penalties upon students for using cannabis , whether inside or outside the school premises, the court will be slow to intervene in the decision-making authority of a school as to state whether the penalty should be suspension or expulsion unless there appears to a want of any reasonable basis for the decision of the school authority.
The High Court so held in adjourning the case for one week for the purpose of providing the plaintiffs and their parents with an opportunity of addressing the board of governors prior to the possibility of any more lengthy suspension or expulsion.
Dermot Rossa Phelan BL for the plaintiffs: Michael Howard BL for the defendant.
Mr Justice Kearns said that this was an application for an interlocutory injunction prohibiting the defendant from proceeding with the expulsions of the two boys from the defendant's school for using cannabis. The two boys in this case, who are due to sit their Leaving Certificate examination in June 2000, were expelled from the defendant's school, which is a private primary and secondary school. Student A has attended the defendant school since he was four years old and Student B was only enrolled as a student since August 1999.
On the night of the 1 October 1999, both boys attended a private party in licensed premises outside Dublin. Neither of the boys was present in any sort of representative capacity on behalf of the school or could be identified as belonging to the school. During the night in question, two bouncers employed by the pub caught the plaintiffs using cannabis in the toilets and put them out of the premises. A teacher employed by the defendant school was also on the premises on the night in question and became aware of the incident. The following morning the teacher reported the incident to the headmaster of the defendant school. Since both boys were caught "red-handed" neither of them have denied being in possession of cannabis on the night in question. The headmaster, having spoken to the board of governors, called to the home of Student A and informed his mother of his expulsion. That same day, he also communicated by telephone notice of Student B's expulsion to his parents.
The headmaster in expelling the boys relied upon Rule 12 of the school's code of conduct which provides: "If a pupil is believed in the headmaster's opinion, to have taken an illicit drug at any time, he/she will be expelled from the school irrespective of whether it was in school or not. There is zero tolerance to drugs." In an effort to persuade the headmaster to either reverse, vary or alter his decision of expulsion both sets of parents met separately with the headmaster. However, the headmaster declined to their request pointing out that if the parties wished to appeal his decision it was open to either of them to appeal this to the school's board of governors.
On 11 October 1999, the parents of Student B wrote to the governors requesting a meeting with the board so that they could "put their case in person" . Both boys wrote letters expressing their remorse to what had occurred. Student B maintained, which is accepted by the defendant, that he was never presented with the school code of conduct or made aware of the school's policy of zero tolerance to drugs. The headmaster accepts that this is correct because Student B had only recently arrived in the school. He further stated that Student B, in the course of a meeting on the 3 October 1999, admitted taking drugs on other occasions in his previous schools. The mother of Student A in her affidavit deposed that parents were never advised of any policy of zero tolerance towards drugs in the defendant school. She claimed that since 1988, she had attended every school meeting but the issue of drugs or drug abuse never came up for discussion. She further claimed that no copy of any rules or code of conduct were ever sent to either her or her son Student A. The defendant's headmaster accepts these averments. However in his affidavit and in his evidence to the court, he stressed that the defendant school's policy on drugs and the penalties for using same were promulgated at least twice in recent years at assembly at which all students attended. He was adamant that Student A would have been perfectly well aware of the serious view taken by the school in relation to drug abuse. In response, the mother of Student A in a further affidavit deposes that her son was not aware that these strictures applied outside hours in a private location.
Although correspondence and an account of the various representations made on behalf of both boys were passed on to the board of governors by the headmaster, no meeting took place between either the parents or students and the board of governors prior to the confirmation of the expulsion by the board on the 14 October 1999.
Both sets of parents claimed that it would be difficult for them to make alternative arrangements for the boys and both sought interlocutory injunctions restraining the defendant from expelling the plaintiffs. The grounds upon which the plaintiffs sought relief were that the requirements of their constitutional right to education has been interfered with, that fair procedures were not observed and that the penalty imposed was disproportionate to the severity of the offence; and further that the defendant failed to take into account extenuating circumstances such as the honest admission of the boys and their full apology and assurance of good behaviour in future.
Mr Justice Kearns noted that this application was of considerable urgency and that any order made by the court may have far-reaching implications for both sides in this matter. He was grateful to counsel on behalf of the defendants for the suggestion that the court might wish to adopt something other than a "black and white" approach to the dispute. Mr Justice Kearns recognised that traditionally a school's authority to exercise discipline over pupils was seen to derive from the in loco parentis doctrine through parental delegation. He stated there is no discretionary power of expulsion but only for a reasonable cause: Fitzgerald v Northcote [1865] F&F 656. Mr Justice Kearns noted the statement of the law in Glendenning: Education and the Law (1999) at page 356 - "It appears that the Irish courts will interfere in the administration of discipline in schools only in the following circumstances: (a) when school authorities or teachers exceed their powers, i.e. act outside the articles of management, or (b) if the sanction administered fails to pass the test of reasonableness."
Mr Justice Kearns noted that the Education Act 1998, which provides for an appeal procedure, do not apply to the defendant since it had not obtained recognition as a secondary school from the Department of Education. Accordingly, Mr Justice Kearns stated that Departmental Guidelines for School Behaviour and Discipline (Circular M33/91) do not apply to the defendant school but nonetheless referred to them as an indication on disciplinary matters. The circular provides that "expulsion should be resorted to only in the most extreme of indiscipline and only after every effort at rehabilitation has failed and every other sanction has been exhausted." Mr Justice Kearns stated the most important disciplinary tools consist of exclusion, suspension and expulsion. He further noted that the guidelines provide that a copy should be made available to all parents, but stressed that they cannot bind a private school which has not been recognised and which is free to devise its own rules and code of conduct.
In addition, Mr Justice Kearns paid particular reference to Mr Justice Finlay's decision in The State (Derek Smullen and Declan Smullen) v Duffy & Others [1980] ILRM 46 and noted in that case that the gravity of the particular offence and its implication for the safety and welfare of other students were all matters which went to the nature of the penalty imposed. He stated an immediate suspension may be necessary to maintain discipline within a school, particularly if pupils are placed in physical danger.
In the present case, Mr Justice Kearns noted that it is contended that 37 per cent of Irish 16-year-olds have smoked cannabis at one time or another, a statistic confirmed by the European Monitoring Centre for Drugs and Drug Addiction, and that therefore cannabis use should not be seen as abnormal or outstandingly serious but rather part of widespread youth culture. He noted in the affidavit of Dr Mark Morgan, presented before the court, that it would be a mistake to regard occasional cannabis use as being necessarily a gateway or inducement to more serious drugs. However, Mr Justice Kearns was persuaded by Dr Morgan's own survey on "Smoking, Drinking and Other Drug Use Amongst Dublin Post-Primary School Pupils" (published by the Economic and Social Research Institute, Dublin 1986) as follows at page 22: "Similarly, smoking of cannabis or hashish, popularly considered an innocuous drug, recently has been associated with health consequences resembling those observed in cigarette smoking. Such effects include respiratory and pulmonary impairment, increased cardio-vascular stress and potentially pre-cancerous changes in lung tissue." Mr Justice Kearns felt it necessary also to refer to an article in Newsweek, November 1999, as to typical reactions cannabis users experience those being "euphoria, perceptual alterations, intensified sensory experiences, impaired short term memory and motor skills".
However, Mr Justice Kearns noted that the court was only concerned with the question as to whether there is a reasonable basis for the defendant school to regard cannabis use as constituting a serious offence. He stated that the defendant school is entitled to take an extremely severe line in relation to drug use, even of soft drugs, because any slippage of discipline in this regard can have the most deleterious implications for the student user, other students and the school generally. He found a "zero tolerance" line of approach not unreasonable in such circumstances.
Mr Justice Kearns found that the most draconian punishment a school can impose is expulsion and that such decisions must be regarded as quasi-judicial in nature, and again noted Glendenning at page 328 in which she states " . . . a school may be perceived by a court to be acting in a quasi-judicial capacity because it is making decisions of a serious nature which influence the rights and liabilities of students. In these instances, there is a legal obligation to act fairly and to implement fair procedures."
Mr Justice Kearns found great difficulty in accepting that it is necessary to have any specific rules or code of conduct in a school, which would emphasise to the pupils that drug abuse is considered a serious transgression by a school authority. Mr Justice Kearns stated that in his view that it cannot seriously be argued that where a serious transgression occurs which is not addressed by the school rules, either because they do not exist or make specific reference to the transgression, the school as a result cannot take steps to discipline the offender. Mr Justice Kearns stated that he was in no doubt that the kind of offence in the instant case must be one where both the parents and the pupil alike must reasonably expect a school to take serious action in the event of transgression.
Once a school has in general terms been fair, Mr Justice Kearns stated that it should not lightly interfere with the autonomy of the school or do anything which might have the effect of damaging its capacity to discipline its students, given that the school usually knows best. Furthermore, he went on to state that it is not appropriate for a court to state whether a punishment should be suspension or expulsion unless there appears to be a want of any reasonable basis for the decision of the school authority. He further stated that, in the same way as the courts extend deference to expert tribunals, the same sort of consideration demands that the court should be extremely slow to intervene in cases of this nature. However, one matter of great concern, which Mr Justice Kearns expressed, was that these expulsions were put in place before either the students or their parents had an opportunity of making representations prior to the imposition of the penalty. He stated that this is an essential aspect of fair procedures, as recognised in McAuley v Commissioner of An Garda Siochana [1996] IR 208, and also it was an essential requirement of natural justice. It was argued that the headmaster had no option but to impose Rule 12. However Mr Justice Kearns stated that this was an erroneous belief since any form of automatic expulsion seems to breach an essential requirement of natural justice that a person be allowed address the question of penalty before same is imposed. Mr Justice Kearns pointed out that the rule should be seen as providing an option rather than mandating the defendant school. Mr Justice Kearns noted that while representations were made to the headmaster they were made ex post facto and that the board of governors should extend full backing to the headmaster whose motives were of the highest regards.
Accordingly, Mr Justice Kearns adjourned the matter for one week so as to provide the plaintiffs and their parents with an opportunity of addressing the board of governors prior to the possibility of any more lengthy suspension or expulsion. However, he stressed that it would remain open to the defendant school to impose a lengthy period of suspension or to order the expulsion of the plaintiffs if, having heard the submissions on behalf of the plaintiffs, the governors feel this is the proper and appropriate course of action to adopt.
Mr Justice Kearns ordered that such meeting should take place in the absence of lawyers as there is something inherently offensive in the concept of school authorities being obliged to thrash out problems of discipline with parents, if either side is present with lawyers, and should representation be required it should only be as a last resort.
Mr Justice Kearns noted that in unrecognised secondary schools when difficulties of this kind arise, the following points seem desirable -
(a) If long term suspension or expulsion of a pupil is to take place, rules of natural justice require that the student or parents concerned be given an opportunity of making representations as to the penalty.
(b) Exceptional circumstances may justify immediate or even long term suspension without notice or procedures, e.g. where there is danger to life and property.
(c) In situations where Departmental Guidelines or the provisions of the Education Act 1998 do not apply to a particular school, it is important for such schools to have clear rules of conduct and to ensure that parents and pupils are made fully aware of such rules and disciplinary policy. In addition, it would be prudent for schools to adopt a practice of requiring parents to read and sign such rules, particular where any rule relates to behaviour of students off the school premises and outside school hours.
(d) In the context of any meeting or hearing of the type mentioned in paragraph (a), it is not desirable that lawyers be involved at this stage of the process and indeed in matters of this sort legal intervention should ideally be kept to a minimum.
Solicitors: Donal Reilly and Collins (Dublin) for the plaintiffs; A. & L. Goodbody (Dublin) for the defendant.
Note - At the adjourned hearing, Mr Justice Kearns was informed that the pupils were to be re-admitted on stringent conditions and the proceedings were struck out with no order as to costs.
