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High Court of Ireland Decisions
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Cite as:  IEHC 47
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JUDGMENT ofKearns J. delivered on the 25th day of November 1999.
1. The two Plaintiffs in this case, who are due to sit their Leaving Certificate examination in June, 2000, were expelled from the Defendant school, which is a private primary and secondary school, on the 2nd October, 1999.
2. Student A was born on the 14th September, 1983 and has attended the Defendant school since he was four years of age. Student B was born on the 4th February, 1982 and was only enrolled as a student of the Defendant school in August, 1999.
3. On the night of the 1st October, 1999, both boys attended a private party which was held in licensed premises outside Dublin. In the course of the evening, 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 on the premises and became aware of the incident which he reported the following morning to the headmaster of the Defendant school. As both boys had been caught"red-handed", they neither on the night in question or at any subsequent time denied being in possession of cannabis on the night in question, so there is no dispute about the facts of the incident giving rise to their expulsion.
4. In the case of Student A, the headmaster, having spoken to the Chairman of the Board of Governors, called to the home of Student A and informed his mother of the expulsion. In the case of Student B, the headmaster communicated by telephone with his parents on the same day to inform them that Student B had also been expelled.
5. In expelling the boys, the headmaster 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."
6. Subsequent to the expulsion, both sets of parents met separately with the headmaster in an effort to persuade him to either reverse, vary or alter his decision, but the headmaster declined to do so, pointing out that it was open to the parents to appeal from his decision to the Defendant school's Board of Governors.
7. The parents of Student B duly wrote on the 11th October, 1999 to the Governors, requesting a meeting with the Board so that they could "put their case in person". Both boys wrote letters in which they expressed remorse and regret for what had occurred.
8. Insofar as Student B was concerned, he maintained, and this is accepted by the Defendants, that he was never presented with the School Code of Conduct, nor was he ever told of the school's policy in relation to drugs. The Defendant's headmaster accepts that this is correct because Student B had so recently arrived in the school. He further states that Student B, in the course of a meeting with him on the 3rd October, 1999, admitted taking drugs on other occasions in his previous schools.
9. In the Affidavits presented to the Court, the mother of Student A has deposed that parents were never advised of any policy of zero tolerance towards drugs in the Defendant's school. She claims to have attended every school meeting since 1988 and states that the issue of drugs or drug abuse never came up for discussion. Further, no copy of the Rules or Code of Conduct were ever sent either to her or given to Student A. The Defendant's headmaster accepts these averments, but in his Affidavit and in his evidence given to the Court, has stressed that the Defendant's school policy on drugs and the penalties for using same were promulgated at least twice in recent years at Assembly at which all students, including Student A, attended. The headmaster is 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 school hours in a private location.
10. I should mention at this part that there is no evidence before the Court to suggest that at the party in question the boys were present in any sort of representative capacity on behalf of the school or could be identified as belonging to the Defendant school. However, it does seem that many of those present were in fact students of the Defendant school.
11. 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 14th October, 1999.
12. The parents of both students claim it will be difficult for them to make alternative arrangements for the boys and seek an interlocutory injunction to restrain the Defendant school from expelling the Plaintiffs. It is claimed on behalf of the Plaintiffs that 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 school failed to take into account extenuating circumstances, including the honest admission of the Plaintiffs to what had occurred and their full apology and assurances of good behaviour in future. Neither boy had been the subject of suspension or other serious breach of discipline at any time within the school.
13. Naturally the application is one of considerable urgency having regard to time considerations and I am conscious that any order made by the Court may have far reaching implications for both sides in this matter, not least because of the practical difficulty in bringing the matter to any final determination within an appropriately short time span. I am thereforegrateful to Mr Howard, Counsel on behalf of the Defendant school for his indication at this hearing that his clients recognise that the Court might wish to adopt something other than a completely "black and white" approach to the problem which this dispute has created.
14. Traditionally a school's authority to exercise discipline over pupils was seen to derive from the in loco parentis doctrine through parental delegation. There is no discretionary power of expulsion but only for a reasonable cause. Fitzgerald -v- Northcote  4 F & F 656.
15. In dealing with the general principles of liability, Glendenning (Education and the Law) (1999 Ed) at p. 338 states as follows:-
"Phillimore J. was one of the first to lay down the general principles by which school discipline is governed. In Mansell -v- Griffin  1 KB 160 at 168, he indicated that the ordinary authority, in regard to classroom discipline, extends to the class teacher. With respect to punishments and sanctions generally, he considered it sufficient for the teacher to be able to say:-
'the punishment which I administered was moderate; it was not dictated by any bad motive, and it was such as is usual in the school and such as the parent of the child might expect that the child would received if it did wrong' it would be difficult to improve on this brief statement as a general guiding principle underpinning all school sanctions."
16. At p. 356 she states:-
"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) when decisions made by the Secretary General under Section 29 of the Education Act, 1998 are appealed to the Courts by way of Judicial Review, or
(c) If the sanction administered fails to pass the test of reasonableness.
It is important to note at the outset that the provisions of the Education Act, 1998, which provide for an appeal procedure, do not apply to the Defendant school. It had applied for but had not obtained recognition as a Secondary School from the Department of Education, apparently on the basis that there were already a large number of schools in the particular area. For that reason, Departmental Guidelines for School Behaviour and Discipline (Circular M 33/91) do not apply to the Defendant school, but nonetheless are instructive as an indication of current thinking on disciplinary matters.
In relation to the sanctions, the guidelines provide:-
"It is accepted that there is a need for sanctions to register disapproval of unacceptable behaviour. Each school will devise a graded system of sanctions suitable to its particular needs and circumstances. They should, however, contain a degree of flexibility to take account of individual circumstances. Misbehaviour should be checked immediately after it occurs."
17. It also provides:-
"Expulsion should be resorted to only in the most extreme cases of indiscipline and only after every effort at rehabilitation has failed and every other sanction has been exhausted."
18. The most important disciplinary tools consist of exclusion, suspension and expulsion. The guidelines, where they put forward a "Suggested Code of Behaviour and Discipline for Post-Primary Schools" deal with gross misbehaviour as follows:-
"For gross misbehaviour, or repeated instances of serious misbehaviour, suspension will be considered. Aggressive, threatening or violent behaviour towards a teacher will be regarded as serious or gross misbehaviour.
Where there are repeated instances of serious misbehaviour, the parents will be requested in writing to attend at the school to meet the manager or principal. If the parents do not give an undertaking that the pupil will behave in an acceptable manner in the future, the pupil may have to be suspended for a temporary period.
In the case of gross misbehaviour, the management authority shall empower the principal to sanction an immediate suspension, pending a discussion of the matter with the parents.
Expulsion will be considered only after every effort at rehabilitation has failed and every other sanction exhausted."
19. It further provides that a copy of the code should be made available to all parents. These guidelines are useful in a general way, but cannot of course bind a private school which has not been recognised and which is free to devise its own Rules and Code of Conduct.
20. The single most important Irish authority in recent times dealing with school discipline is The State (Derek Smullen and Declan Smullen) -v- Duffy & Ors  ILRM p. 46.
21. In that case the prosecutors were pupils in a school where they were involved in a serious disturbance with other pupils immediately outside the gates of the school in which the second named prosecutor was stabbed and taken to hospital as a result. The school principal conducted an immediate inquiry into the disturbance, in which he interviewed pupils involved, except the second named prosecutor. He concluded that all pupils involved should be suspended.
22. As pointed out by Finlay J. at p 51:-
"On any view of the facts of this case, Mr Heeran, the principal, was on 1st April, 1976, after a fight of these dimensions between the pupils of the school carried out immediately in front of its gates, faced with a serious disciplinary problem. On his affidavit, I am satisfied that he made as full an investigation of what had occurred on that occasion as was possible. Having done so, it became apparent that one of the two prosecutors went outside the school on that occasion not only prepared for and expecting a fight but apparently armed by stealing or obtaining an already stolen bar from the school premises. Not only was that iron bar used in the ensuing fight but also it would appear that at least one of the other pupils used a knife involving, inter alia, the injury to the other prosecutor. It seems to me that the immediate conclusion reached by Mr Heeran, that he was faced with a problem of what he described as two rival gangs prepared to resort to physical violence to settle their differences likely to cause considerable unrest and danger to other pupils, was one which was well founded on the information available to him. To suspend, therefore, as he apparently did, by an immediate suspension order both sides of the rival gangs seems to me a minimum responsible decision for a school teacher with obligations to maintain discipline and safety within his school. It does not seem to me that his failure by reason of the absence of one of the two prosecutors from school in hospital on the 1stApril, 1976 to have interviewed that particular boy could possibly affect the validity of the decision he had reached or the fairness or bona fides of the method by which he reached it.
Having done so in accordance with the draft Articles of Management he immediately informed the prosecutors' sole surviving parent and informed her in a straightforward and unambiguous fashion that she could make representations by way of appeal to the Board of Management and was careful to inform her of the effective time in which she had to do that, which was a period of almost a month."
23. As is apparent from the foregoing, the gravity of the particular offence and its implication for the safety and welfare of other pupils are all matters which go to the nature of the penalty imposed. An immediate suspension may be necessary to maintain discipline within a school, particularly if pupils are placed in physical danger.
24. Turning to the instant case, it is contended that 37% of Irish sixteen year olds have smoked cannabis at one time or another, a statistic confirmed this week by the European Monitoring Centre for Drugs and Drug Addiction, and that therefore cannabis use should not be seen as an abnormal or outstandingly serious matter but rather part of widespread youth culture. It is also suggested in the affidavit by Dr Mark Morgan, who specialises in social research into substance abuse amongst young people, that it would be a mistake to regard occasional cannabis use as being necessarily a gateway or inducement to more serious drugs.
25. However, 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) states as follows at p. 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, increasedcardio vascular stress and potentially pre-cancerous changes in lung tissue (CF. Polich, et al., 1984; Jones 1980). Of additional concern for this age group, cannabis use has also been associated with short term impairment of learning and memory. Daily use of this drug, particularly if this use overlaps with school hours, may thus interfere with the educational process and have serious adverse consequences for a young person's later opportunities and quality of life (CF. Polich, et al., 1984)."
26. Dr Morgan also referred to the current issue of Newsweek for November, 1999 and an article which deals with the increasing tolerance for soft drugs in European societies generally to which I refer purely for the purpose of citing what are stated to be typical reactions to cannabis user, being "euphoria, perceptual alterations, intensified sensory experiences, impairs short term memory and motor skills".
27. While debate on the consequences to health from using cannabis has gone on for many years, and may continue to do so for many years to come, the Court is only concerned with the question as to whether or not there is a reasonable basis for the Defendant school to regard cannabis use as constituting a serious offence, given that it is also a criminal offence under existing law. In my view, there can be no doubt but 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. I do not find a "zero tolerance" line of approach unreasonable in such circumstances.
28. That said, expulsion is the most draconian punishment a school can impose, and such are the implications of expulsion, particularly for a final year student, that such decisions can be properly regarded as quasi-judicial in nature.
29. As Glendenning points out at p. 328:-
"Other school decisions have a greater impact on the lives of students, for instance, when a school permanently excludes a student, or suspends a student for a long period or refuses to enrol a student. In such circumstances, 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. Accordingly, parents, or the student who has reached his or her eighteenth birthday, may seek the leave of the High Court to have school decisions of a quasi-judicial nature reviewed by the High Court on procedural grounds only i.e. on the grounds of fairness".
30. I have the greatest difficulty in accepting the proposition that it is necessary to have any specific rules or Code of Conduct in a school which would emphasise to the parents or pupil that drug abuse is considered a serious transgression by a school authority. It cannot be seriously argued in my view that where a serious transgression occurs which is not addressed by school rules, either because they do not exist or make specific reference to the transgression in question, that the school as a result can take no steps to discipline the offender. There may be grey areas where particular concerns of a school authority should be spelled out in the school rules to ensure that parents and students are fully aware both of a rule and the disciplinary policy. However, the kind of offence in the instant case must be regarded as falling into the category where both parents and pupil alike must reasonably expect a school authority to take serious action in the event of transgression.
31. Once a Court decides that a school has in general terms been fair I would take the view 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, with its vast experience and knowledge of its pupils, usually knows best.
32. Accordingly, it does not seem to me appropriate for a Court to state whether a punishment should be suspension or expulsion in an individual case unless there appears to be a want of any reasonable basis for the decision of the school authority. In the same way as the Courts extend deference to expert tribunals, it seems to me much the same sort of consideration demands that the Court should be extremely slow to intervene in cases of this nature.
33. One matter, however, is a cause for concern and that lies in the fact 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 most severe penalty to be imposed by a school. This is an essential aspect of fair procedures. It was recognised by the Supreme Court inMcAuley -v- Commissioner of An Garda Siochana  IR 208 and is also, it seems to me, an essential requirement of natural justice.
34. This requirement was addressed by Barron J. in Flanagan -v- UCD  ILRM 724 when he stated:-
"Matters to be considered are the form in which the complaint should be made, the time to be allowed for the person to prepare a defence, and the nature of the hearing at which the complaint may be presented. In addition, depending upon the gravity of the matter, the person concerned may be entitled to be represented and may also be entitled to be informed of their rights. Clearly matters of a criminal nature must be treated more seriously than matters of a civil nature,but ultimately the criterion must be the consequences for the person concerned of an adverse verdict." (my emphasis).
35. There can be no doubt in the instant case that the adverse consequences of the penalty imposed are very considerable. A view was formed by the headmaster that he had no option but to impose Order 12 instanter. In my view, that was an erroneous belief, because any form of automatic expulsion seems to me to breach an essential requirement of natural justice that a person be allowed address the question of penalty before same is imposed. The rule should be seen as providing an option rather than mandating the Defendant school. It certainly, however, should not be seen as precluding a student or parent from making a submission prior to the ultimate sanction of expulsion.
36. While representations were made to the headmaster in the instant case, they were made ex post facto and there must in such circumstances be a real possibility that the Board of Governors could to some extent have been motivated by the entirely understandable sense that they should extend full backing to the headmaster whose motives throughout were of the highest order.
37. Accordingly, I propose adjourning this matter for one week and to avail of the indication provided to the Court by Counsel for the Defendant for the purpose of inviting the parties to consider that the exclusion or present suspension of the Plaintiffs, had it occurred, would, for the reasons which I have outlined, been justified, but that the Plaintiffs and their parents be provided with an opportunity of addressing the Board of Governors prior to the possibility of any more lengthy suspension or expulsion. If the parties give me such an indication next week, I will further adjourn the matter to enable this process take place. Obviously the school would have to adopt a certain course to make this possible.
38. I should stress that it will remain open to the Defendant school either to impose a lengthy period of suspension or to order the expulsion of the Plaintiffs if, having heard the submission on behalf of the Plaintiffs, the Governors feel this is the proper and appropriate course of action to adopt.
39. In relation to any such meeting as may take place, it seems to me desirable that the same should take place without the presence of lawyers on either side. There is something inherently offensive in the concept of school authorities being obliged to thrash out difficult problems of discipline with parents, particularly at the initial stages, if either side goes to such a meeting with legal representation. Of course legal representation may become necessary, but it seems to me that it should only be as a last resort in matters of this nature. As pointed out byFinlay J. in the State (Smullen) -v- Duffy at p. 52:-
"I am satisfied that there is no obligation either on the principal or upon the Board of Management in this case to permit any legal representation, whether by a full lawyer or by a member of FLAC, of the prosecutors or of their mother at any meeting or hearing in connection with this suspension. It seems to me inherent in the general provision for the discipline of a school and indeed in the interest of pupils of a school and the relationships which should exist between them and the school authorities and between their parents and the school authorities that communication should, in the first instance at least, be direct and should not, preferably, and certainly not as a right, be through legal representatives."
40. The good sense of these observations seems to me self-evident.
41. While I did at the outset of these proceedings grant anonymity to the parties, particularly because of the prejudice which the Plaintiffs as minors might suffer in the event of an adverse outcome to the proceedings, the question is not one which is entirely free from doubt and I may deem it necessary to invite further submissions from the parties in this regard.
42. Finally, in the hope that it may be of some assistance to unrecognised Secondary Schools generally when difficulties of this kind arise, the following points of approach 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 penalty.
(b) Exceptional circumstances of the type occurring in the State (Smullen) -v- Duffy 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, particularly 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.
Dated this 25th day of November 1999.
NICHOLAS J. KEARNS