Schools must be clear in policy over legal representation for errant pupils, writes Carmel Rickard.
Some unwelcome year-end news just in for school heads and governing bodies. It’s a judgment that will have serious repercussions for the school involved, but it should also have other schools re-examining their policies on disciplinary inquiries.
The story concerns a 12-year-old, attending a private school in Windhoek, who faced expulsion because he was allegedly caught with drugs on the school grounds.
Would he be allowed legal representation at the school’s internal disciplinary inquiry? his parents wanted to know. The school refused, saying its policy was to keep such matters “within the family”.
A series of court actions and threats of court action followed, but a full bench of Namibia’s supreme court has handed down its unanimous judgment – the family should have been allowed to appoint a lawyer of their own choosing and at their own cost, to represent the boy.
The court also declared the outcome of the school’s disciplinary hearing invalid and the school was ordered to permit the family to appoint a lawyer for any future hearing. To make the point even more strongly, costs were awarded against the school, a factor that will no doubt play havoc with its finances.
During February last year, the boy’s parents were informed by the principal that, in line with the school’s policies on drugs, their son – identified only as “T” – was to be permanently “excluded” from the school.
T faced two counts of misconduct: that he had “dealt in marijuana” on the school campus, or had been found in possession of it, and that he had brought the name and reputation of the school into disrepute through his dealing in, or possession of, the drug.
When the parents tried to negotiate with the principal over legal representation at the pending disciplinary hearing, he replied that as this was an “internal process”, “neither the school nor yourselves will require a lawyer”.
At the hearing, the school still refused to allow legal representation. The parents, meanwhile, said as they heard more details, they realised the case against their son was complicated, that it involved charges of a criminal nature and that, according to the school’s policy, their son could be handed over to the police.
They kept up pressure for representation, saying they could not proceed without a lawyer. When the school said the hearing would go ahead without them, the parents left the inquiry.
After the school found against the boy, the parents took the matter on review to the high court, but were not successful. However, the high court’s findings were brushed aside by three judges of Namibia’s highest court when the parents appealed.
Lawyers for T’s family argued that the case against T was so complicated that his request for legal representation was justified. In addition, the school’s policy was that in such hearings, the student could be represented by “someone” and this should be interpreted widely to include a lawyer, the parents argued.
The school’s position, by contrast, was that the school contract provided for the right to administrative due process, which meant students were “entitled to have someone assist them” in their case but that this did not mean they could hire a lawyer.
According to the supreme court, however, the word “someone” had a wide meaning in this context. If the school wanted to limit who would be permitted to represent a student, it should do so more clearly.
What if the “someone” who represented a student at such a hearing was a parent who was a lawyer? This would make it unfair that someone else whose parents weren’t lawyers were barred from legal representation, the judges commented.
They said what should have tilted the balance for the school when considering whether to allow legal representation for T was that the school drugs policy could have led to serious potential punishment in the criminal justice system as well and evidence and statements used during the school hearing could later have been used against T if there were criminal charges.
And even though the boy had moved schools, the issue was not merely academic, said the judges, since T would still have the inquiry’s finding against him hanging around his neck in later life.
T’s case should be a wake-up call for schools – keeping hearings simple and “within the family” is a great idea, but it might not work in the case of serious charges or where the school’s policy isn’t absolutely clear.
* Carmel Rickard is a legal affairs specialist. Email [email protected] or visit www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Media.
Cape Times