10jun schools and the law hero default

Schools and the law

Is your child's school proving to be one long and arduous learning curve? We look at how the law applies to issues such as school fees, sex and religious education, and inappropriate teacher behaviour. We also answer common questions about uniforms, truancy, privacy and other matters.

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School fees

State schools

The Education Act says that every child between the ages of 5 and 19 years, who is not a foreign student, "is entitled to free enrolment and free education at any state school".

State schools cannot charge fees for teaching the curriculum - this includes subjects such as computer studies, art, clothing and woodwork courses. But a Massey University study found 1 in 5 schools charged for core subjects.

Schools can charge for any "take home" component of a course, such as artworks, craft and so on.

They can also charge "activity fees" for extra-curricular activities. This includes most sports activity. They can't enforce payment, but can exclude those who don't pay.

Schools can ask for donations to cover general costs, but Ministry of Education guidelines state they should make it clear to parents the donation is voluntary, and the word "fee" should not be used.

Some schools have run into controversy through their zealous collection of "donations". One Auckland college threatened to ban from the school ball all students whose parents had not paid. It was effective - the school netted some $17,000 in 5 days.

The Massey University research found only 29 percent of schools actually told parents the payments were voluntary. Most used wording that implied they were mandatory.

Integrated schools

An integrated school is either a former private school that has joined the state system, or one that has been integrated since creation. They are allowed to retain their special feature or character, which is usually religious or cultural.

Integrated schools can charge attendance dues, but the money raised in this way can be used only for improvement of school buildings and facilities. If your child is enrolled at such a school, you are contractually obliged to pay these dues.

Our advice regarding school fees

  • If you're concerned at the legality of a charge levied by the school, first make sure you know exactly what it's for. Is the activity outside the syllabus? Will it be outside normal school hours? Will the school face additional costs for providing the activity? If the answer to some or all of these questions is yes, the activity is probably optional and the school probably has the right to charge those who participate.
  • If you can't pay a donation or any other kind of charge, talk to the school - they may be able to assist.

Sex and religious education

Sex education

Sex education forms part of the health syllabus right through the school years, and is placed in the broad context of the physical, emotional and social development of children into puberty and through adolescence.

Under the Education Act, students 16 and above, or the parent/caregiver of a student under 16, may ask the principal to be released from a sex education class

Religious instruction

Religious studies topics can turn up in the social studies syllabus and in other areas, but there is not supposed to be any religious instruction or participation in religious practices in a state school.

The Education Act 1964 states that all state primary schools are to be secular. It does allow a certain level of optional religious instruction, one example being the "Bibles in Schools" programme. State secondary schools are not covered by any express requirement to be "secular".

A principal of a state school may release a student from religious or cultural tuition upon receiving a written request from either the student aged 16 and above, or a parent/caregiver of the student aged under 16. The request must be made at least 24 hours before the class in question. Such an application cannot be made at integrated schools.

The principal cannot release a student from tuition unless they are satisfied the request is based on sincerely held religious or cultural views and the student will be adequately supervised (whether within or outside the school) during the tuition.

The principal must also discover the student's views on the matter before making a decision.

Inappropriate teacher behaviour

From time to time, teachers hit the headlines for supplying alcohol to students, accessing pornography or forming inappropriate relationships with students.

If you complain about a teacher, the principal (and board of trustees, if you complain to them) has an obligation to investigate.

Minor matters

These will usually be dealt with by the principal and may require little more than an informal chat. The teacher may undergo a period of supervision or retraining.

Serious misconduct

Once the details of a serious complaint have been assessed, the board will interview the teacher and give them a chance to put their side of the story.

The circumstances of each case will determine the appropriate course. The board can decide to dismiss the complaint, censure the teacher, impose additional training or dismiss the teacher. If there is a suggestion of criminal behaviour, the matter may be handed over to the police.

Mandatory reporting

The Education Act 1989 contains a mandatory reporting regime that requires a board to report in writing to the Teachers Council, about teachers who have resigned or have been dismissed in circumstances related to their competence or behaviour.

Under the Education Standards Act 2001 schools that do not comply with the notification requirements will be liable to a fine of up to $5000. The Act also obliges the courts to report convictions of teachers punishable by imprisonment of 3 months or more, to the New Zealand Teachers Council, within 7 days of the conviction.

Our advice regarding teacher behaviour

  • Try to form a clear idea of what the problem is and what you think should happen, before you contact the school.
  • If an event concerns you, make notes about it - even if you don't intend to lay a complaint. You may change your mind later, and will probably need the notes to help remember what happened.
  • Make your complaint as soon as possible after the event. If there is a delay, explain in your letter why this has occurred - for example, you may have only just found out about it, or your child may have been frightened of the repercussions if you complained.
  • Keep copies of all correspondence. If you write to the principal, send a copy to the board of trustees as well.
  • Often, it's best to raise a matter directly with the teacher in question. But if you think this is inappropriate, take your concern to the principal. If the matter cannot (or should not) be dealt with informally, you will need to put your complaint in writing to the principal. If the complaint is about the principal, it should be in writing to the chairperson of the board of trustees.
  • If there is no satisfactory outcome from a school investigation, or there is a valid reason not to go to the school in the first instance, take your complaint directly to the New Zealand Teachers Council.

General advice

If you're unhappy with the treatment your child has received at school, speak to their teacher first, and then with the principal. Talk to other parents - especially those of any other children who may be in the same situation as your child.

  • Is the problem primarily related to your own child's poor behaviour? In this case, try to find a way to work with the school to improve matters.
  • Is the problem caused by the teacher not coping well? You'll need to discuss this with the principal. Ask for a report back, and monitor progress.
  • Is the problem caused by a difference between your child and the school over the reasonableness of school rules, discipline or educational philosophy? You could consider enrolling your child in another school - but that's not always feasible, and besides, if the school is out of touch, it may be time for the school rules to change. If you're in this situation, talk to other parents. Get a groundswell of support. You won't be able to do it on your own.
  • If you think the school's approach breaks the law, write to the board of trustees - the board is elected to represent your local school community.
  • If you have no luck with the board, you could write to the Education Review Office.

Uniforms and appearance

Yes. The Education Act gives a school's board of trustees power to make rules for its school. By enrolling him at the school, it's implied you have accepted those rules - including any uniform requirement. A school can also insist that students wear their uniforms on trips (including out of school hours).

If a student continually refuses to wear their uniform properly, the school can warn them of the likely consequences. "Continual disobedience" can be punished through detention, stand-down, suspension or even exclusion/expulsion. A student can only be sent home if he or she is actually suspended or stood down which will take effect from the next day.

The right given to schools under the Education Act to set their own rules and regulations is not absolute. It is subject to the general laws of New Zealand, one of which is the Human Rights Act (HRA).

The HRA forbids discrimination on the grounds of sex, religious or ethical belief, colour, race, ethnic or national origin, political belief, disability or age.

The Human Rights Commission (HRC), which administers the Act, has upheld the rights of Maori students to wear jewellery taonga (a bone or greenstone pendant) at one school, even though jewellery was banned under that school's uniform code.

But a 15-year-old Indian girl was excluded from a high school for wearing a tiny traditional nose stud that she argued was of cultural importance to her. It would appear the school breached the HRA on this point, but no complaint was made to the HRC.

When the HRC investigates a complaint, it first tries to mediate a solution between the parties. If this is unsuccessful, the complainant could apply to have the matter heard before the Human Rights Review Tribunal. If the tribunal found in your favour, and the school refused to accept the ruling, you could take your case to the High Court to have it enforced.

No. Contrary to common perception, the Human Rights Act does not prohibit discrimination on the grounds of appearance. Schools can decide that piercings - along with tattoos, various styles of clothing, dreadlocks, dyed hair and the like - are against the rules.

No. But it is illegal to discriminate against someone's ethnicity or nationality. If the dispute is over a piece of culturally significant jewellery, then the discrimination is probably a breach of the Human Rights Act. This is why a high school could have been challenged when it prevented an Indian girl from wearing her traditional nose stud.

No one knows the answer to this one, because the law hasn't been tested in court since 1974. On that occasion, the court upheld the right of a school to enforce its rules, including those covering hair length and style.

Maybe it would again today. But the difference is that today the judge would have to balance the student's right to freedom of expression - guaranteed under the Bill of Rights Act - with the school's right to govern itself, granted by the Education Act.

It is likely the court would find in favour of the school, but it's a grey area for now.

Truancy

Under the Education Act a child aged between 5 and 16 is required to attend school unless they are sick, have suffered a family bereavement, or have some other compelling reason for being away.

If a student needs a bit of time out to deal with stress or another such mental health issue, that's probably fine. But if "mental health days" is a euphemism for a skiing holiday, you're breaking the law.

If you do want to take your child out of school for a special reason, talk to the teacher. It may be they're relaxed about it, or they might suggest the child takes some extra homework to make up.

Under the Education Act a parent can be fined $15 for each day their child is absent from school without excuse. (This fine also applies to Correspondence School students who have not logged on during the hours they are supposed to.)

Failure to enrol a child between the ages of 6 and 16 can result in a $1000 fine. Police and the Child, Youth and Family service may also become involved.

The principal can (somewhat ironically) suspend her for truancy. If she is absent from her school for 20 consecutive school days without explanation, the principal can remove her from the school roll.

Contact the school. They have a responsibility to ensure truancy is looked into and necessary resources are allocated to help remedy the situation. The school should talk to you about this and may suggest a "Strengthening Families" meeting, where specific problems can be directed to the appropriate agency.

Privacy

No. The Bill of Rights Act protects all people in New Zealand from unreasonable searches, not just adults. A search should not be made of an entire school, or class, just because one student may be guilty of wrongdoing. These are known as "general searches" and will, in the absence of extraordinary circumstances, breach the Act.

Generally teachers do not have the right to search children. However, it can depend on the circumstances. A teacher could have the right if the child consents or there is reasonable grounds for suspecting a student is in possession of something that may cause harm to other students. If, for example, a student had pulled a knife and was later spotted by a teacher, it would be perfectly reasonable for that teacher to search the student.

In most cases schools search with the consent of the student, or get the police to do it. If, for example, they suspect a student has stolen property in their bag, and the request to search the bag is declined, the school may call the police and have them carry out the search.

The principals we spoke to said this doesn't happen very often. Usually the students open their bags when they're asked to.

If no payment has been made for the locker then it remains school property and can be searched without consent. There must, however, be reasonable grounds for suspicion as she has the right to a reasonable degree of privacy.

If a student has rented the locker, the school should not conduct a search unless there are reasonable grounds to believe that the locker contains something harmful or dangerous to other students.

Students are covered by the Privacy Act and have the same right to privacy as anyone else. She can complain to the Privacy Commissioner if she thinks her privacy has been breached.

A student's right to be protected from an unreasonable search, like all rights under the Bill of Rights Act, is not absolute and can be limited.

Some schools use cameras to help them identify students involved in serious breaches of school rules, such as assaults, theft and vandalism. A previous Privacy Commissioner issued guidelines for this.

These guidelines say the cameras can record only a specified "suspicious area," must not record people's voices, and (in most cases) must have signs advertising their presence. They must not be "unduly invasive" - for example directed into an area where students get changed.

Sending them home

It can actually. Under the Education Act a student can be "precluded" from school if they have a communicable disease (in which case they may need a medical certificate before they can return) or if they are not clean enough.

Students are required to attend schools under the Education Act. This means if a child has to go home from school for any reason, there is an onus on the school to ensure the child's caregivers/parents are advised, so that proper supervision can be arranged. The younger the student, the more important this is.

A student can be stood down for "continual disobedience" or "gross misconduct", either of which must be harmful or dangerous to themselves or others, or set a harmful or dangerous example to others.

The principal or parents can call a meeting to discuss the circumstances surrounding a stand-down. This will provide an opportunity for parents and the school to assess issues with a student's behavior and to determine how to prevent reoccurrence.

"Gross misconduct" is an intentional and serious breach of school rules. Examples might include bullying, smoking, using drugs or alcohol at school, or abusing a teacher.

A student who is stood down will be prevented from attending school for a fixed number of days - no more than 5 per term, or 10 over the whole year.

Suspension still exists; it is the formal removal of a student from school. If a student is suspended, their case is considered by the board of trustees at a formal suspension meeting. It could decide to lift the suspension (with or without conditions), extend it (with conditions that help the student get back to school), or "exclude" or "expel" the student altogether. There are a number of options available if you feel the suspension was unfair. Contact the Parents Legal Information Line (0800 499 488) for further information.

Exclusion is where a student under 16 years of age has behaved so badly they are removed from their school and have to enrol in a new school. Expulsion is the same thing for students aged 16 and over. The difference is that they don't have to enrol in another school.

Students and the police

Yes. Schools are entitled to detain a student suspected of having committed a criminal offence until the police arrive. They should be given something to work on during this time and have access to toilets and food at meal times.

Yes, provided he consented to the search, or the police had reasonable grounds to believe he had the drugs (or a weapon), or the police had a search warrant, or he had been arrested.

The Children, Young Persons and Their Families Act (CYPFA) defines "children" as those under 14 years of age. "Young people" are those who are 14, 15 or 16 years of age (unless they are or have been married). Children and young people have their rights protected by CYPFA, irrespective of whether they are at school or at home.

When police are called to a school, their ability to search a child or young person is clearly defined by this Act.

Yes. The Children, Young Persons and Their Families Act sets out conditions under which police can interview a child or young person. He had the right to have an adult support person with him during the interview, as well as a lawyer. The enforcement officer must explain this right to your son.

Yes. The police are obliged to tell the parents or guardian if they have interviewed a child or young person.

No. People aged 17 years and above are seen as adults and are therefore not covered by The Children, Young Persons and Their Families Act. However, they still have rights under the Bill of Rights Act. Before they can be interviewed the police must tell them they are not obliged to say anything, but anything they do say may be given in evidence. They must also be told they have the right to consult a lawyer immediately and in private.

It is a matter of school policy. However, the Education Act requires schools to keep parents informed about their son or daughter's progress. Something this serious would likely be included, irrespective of the student's age.

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