In the first part of this article, I will attempt to clarify the difference between refusing to admit a student unless and until he complies with a school regulation (i.e. exclusion) and a suspension.
In a British case (Eva Spiers v Warrington Corporation, 1954), Eva Spiers – contrary to the school’s dress code – started to wear slacks because she had suffered several attacks of rheumatic fever and it was felt that the slacks would keep her warm.
The principal of the school was not in favour of this dress for girls but was prepared to make an exception in Eva’s case if the parent could produce a medical certificate or would allow her to be examined by the school’s medical officer.
Her parents were not prepared to adopt either course and Eva would go to school wearing the slacks. On each occasion the headmistress refused to admit her and sent her home.
The Magistrate’s court fined Mr Spiers for not sending his child to school.
The case was appealed to the Queen’s Bench Division where Lord Goddard gave judgement in favour of the school.
In giving judgment Lord Goddard said in part: “The headmistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she be properly dressed.
“Suspending is refusing to admit to school; in this case the headmistress was perfectly willing to admit the girl but was insisting that she be properly dressed.”
What was done in this case is what is often referred to as an exclusion to distinguish it from suspension, which is a ban usually imposed for a specific period of time.
The practical distinction for school principals is that suspension has to be consistent with the powers granted in the regulations.
An exclusion, on the other hand, could be repeated until the student complies with the dress code and does not require, as a matter of law, any special procedures.
Towards the end of last week’s article I posed the question of whether there was potential liability on the part of the principal or Ministry of Education if an accident or some other misfortune should occur to a student who was sent home for failing to wear the correct uniform.
Generally, teachers are not liable for injuries sustained by students on the way home or on the way to school.
The traditional standard of care that a teacher must attain is that of a reasonable and prudent parent. However, gradually the courts have been imposing the standard of the reasonable professional.
It must be established that in the circumstances of the case the principal had by his actions or omissions, acted in a way that amounted to a failure to properly discharge his duty.
It must be proved that the injury was caused by the negligence of the principal.
In most cases it would be difficult to establish negligence, having regard to the fact that we are considering children of secondary school age and very often children who are in senior classes.
However in making decisions about sending children home one must consider factors such as the age of the child, location of the school as well as other circumstances.
For example, if the child is habitually transported to school by a parent, would it be wise to send the child on the street while that parent is working?
It is submitted that there is potential for liability, if the principal chooses to ignore relevant factors and assume that enforcement of the dress code means that his responsibility is discharged by sending home those children who, in his opinion, have not complied.
In my opinion the principals acted correctly in giving wide publicity to the standardised dress code. They have also acted wisely in responding swiftly to the breaches that have occurred.
However, in responding to breaches they must be careful not to give the impression that they have predetermined what the punishment shall be and they are not prepared to treat each case on its own merit.
• Cecil McCarthy is a Queen’s Counsel.
