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EVERYDAY LAW: Potential liability in suspensions


Cecil McCarthy

EVERYDAY LAW: Potential liability in suspensions

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The incident in which 32 students were suspended from a secondary school recently for arriving late has prompted me to devote this article to issues relating to such a decision.
First of all, it should be noted that the power to suspend is controlled by legislation. One should consider whether the infraction of which the children are guilty is punishable by suspension as a matter of law.
By virtue of the Education Regulations 1982, the principal of a public school may suspend a pupil for a period not exceeding ten days where the pupil:
• commits any act that causes injury to a teacher or another pupil in the school; or
• where his conduct is such that his presence in the school is likely to have a detrimental effect on discipline of other pupils of the school.
Based on the above provisions, it seems that before suspending a student for lateness, you should be satisfied that his presence in the school is likely to have a detrimental effect on the discipline of the school’s other pupils.
I suppose it is arguable that persistent lateness could rise to the level where it is considered detrimental to the discipline of other pupils when you are trying to instil the discipline of punctuality. However, you may well feel that forms of punishment that do not require the child to be away from school might be more appropriate, at least in the first instance. They may also avoid the possibility of contravening the statutory regime with respect to suspension.
The other matter that needs to be considered is the potential liability if the suspension was effected by an early dismissal of the children on the day that they turned up late. 
When a parent or guardian sends a child to school, it is expected that the child will be in school for the full school day. If, for any reason, the school is not prepared to accept the child for the full school day, then the parent or guardian should be informed.
Let us consider a case that occurred in another jurisdiction. I refer to D.C. vs St Landry Parish School Board (2001), a decision of the Court of Appeal of Louisiana Third Circuit.
In that case, a 12-year-old schoolgirl who was in her first year at East Junior High School in Opelousas, Louisiana, was requested to “sign out” of school by the office secretary after she was informed by the deputy principal that her skirt was too short and violated the school’s dress code.
The vice-principal had instructed her to go to the office and call someone to bring her some acceptable clothes. She telephoned home and spoke to her then 18-year-old brother, who told her he did not have transportation to the school and, therefore, could not bring any clothing for her.
It was after this telephone call that the secretary told her that she would have to go home and obtain appropriate clothing.
She left school after 7:59 a.m. and as she walked along the street towards her home, she was sexually molested by a man. The incident occurred about eight blocks away from the school.
The plaintiff, on behalf of the child, brought an action against the man, the school board, the principal, deputy principal and the office secretary.
The trial court concluded that all defendants were liable and awarded damages.   The court held that the school board’s duty of reasonable supervision extended to an act of indecent behaviour involving a juvenile which occurred about eight blocks away from the campus. It also held that the actions of the school board resulted in a breach of the duty of reasonable supervision.
School policy required that an administrator should obtain direct contact with a parent before signing a student out of school. This was not done in this case.
The court held that the duty of reasonable supervision is generally always present when a child is at school during school hours. Also included within that duty of reasonable supervision is a duty to make the appropriate supervisory decision concerning a student’s departure from school during regular school hours. The defendant had a policy in place and breached its duty to K.C. (the child) by violating its own policy.
It was established that K.C. was required to walk through an area of Opelousas described as the “Hill”, which was known for illicit drugs and other activity. The court, therefore, concluded that there was a foreseeable risk that a 12-year-old female who walked through the area “may fall victim to one of the nefarious criminals who often frequented such an area at a time when those streets are normally clear of junior high school students”.
This case illustrates the potential for liability where appropriate dismissal policies are not devised and followed.
Although the case is from another jurisdiction, the principles, derived essentially from the common law of negligence, are in my view substantially the same as those which our courts are likely to apply if confronted with similar facts.
• Cecil McCarthy is a Queen’s Counsel.

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